Bolhuis Lumber & Manf'g Co. v. Brower

While an action at law, brought by plaintiff to recover on a promissory note executed by defendants, and in which defendants gave notice of claim of set-off, was pending, the parties, on November 25, 1929, entered into an agreement for arbitration, pursuant to sections 13646 et seq., 3 Comp. Laws 1915. It provided for hearing and decision within 15 days thereafter. Each of the parties appointed an arbitrator, and the two thus named appointed a third. An award, made by two of the arbitrators on December 16, 1929, in favor of defendants in the sum of $281.83, was confirmed by the court on December 23, 1929, and judgment entered thereon. The plaintiff thereafter moved to set aside the confirmation and judgment. This motion was denied. Plaintiff seeks review by writ of error.

The motion was based upon the claim of the plaintiff that the award was procured by undue means; that the arbitrator named by defendants was partial; that defendant John J. Brower used undue influence in an effort to influence the judgment of the arbitrator named by plaintiff; that the set-off was improperly allowed; and that it was made after the time fixed therefor in the arbitration agreement.

Affidavits were filed in support of and in opposition to the motion, and the testimony of plaintiff's arbitrator, Frank Essenberg, was taken at the hearing. There was no dispute about the liability of defendants upon the note. The defendants' claim of set-off was based on plaintiff's failure to comply with the terms of a contract for the erection of a dwelling house, made with the defendant J.J. Brower and his wife, Helen Brower. The claim for damages therefor was clearly stated in the arbitration agreement. By agreement between the attorneys they took no part in this proceeding, nor was any record kept of the meetings of the arbitrators or of the proceedings had before them.

It appears from the testimony of Mr. Essenberg that the defendants appeared and produced witnesses tending to support their claim; that witnesses were called on behalf of plaintiff, and that the three arbitrators made an examination of the building; that they then met and gave consideration to the matters submitted to them, and two of them signed the award as filed in the court. He also testified that he "was the contractor and had charge of the building of this house when it was built." It is not surprising that he was unwilling to agree to a finding that it did not comply with the terms of the contract. He also testified that the defendant John J. Brower called at his office and complained about his selection as an arbitrator and made some threats as to what he would do to the witness if he decided in plaintiff's favor. This was not denied by Mr. Brower, and it was very improper conduct on his part. But, as Essenberg did not sign the award, we fail to see how it can be said to affect the action of the two arbitrators who did sign it. He (Essenberg) admitted that plaintiff took no part in the proceeding; that he procured the attendance of the witnesses for plaintiff, and in effect took charge of presenting the plaintiff's defense to the claim of set-off before the arbitrators.

The statutory grounds for complaining of such an award are thus stated (3 Comp. Laws 1915, § 13654):

"1. That such award was procured by corruption, fraud, or other undue means;

"2. That there was evident partiality or corruption in the arbitrators, or either of them;

"3. That the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear any evidence, pertinent and material to the controversy; or any other misbehavior by which the rights of any party shall have been prejudiced."

The proof submitted did not justify the vacation for any of these reasons.

"4. That the arbitrators exceeded their powers, or that they so imperfectly executed them, that a mutual, final and definite award on the subject matter submitted, was not made."

It is insisted that the failure of the arbitrators to file their award within the 15 days specified in the agreement for doing so rendered it void. This contention is without merit. A similar question was presented in Patrick v. Batten, 123 Mich. 203, and in disposing of it the court said:

"The parties in this case did not provide that the award should be void if it was not made at the time appointed. The failure to file the award within the time fixed is not one of the reasons provided for by the statute for vacating it."

The purpose of arbitration proceedings, and the unwillingness of the court to interfere with the awards made pursuant thereto, were commented on at some length by Mr. Justice CAMPBELL in Port Huron, etc., Ry. Co. v. Callanan, 61 Mich. 22, in which it was said:

"But it is evident that there are great objections to any general interference by courts with awards. They are made by a tribunal of the parties' own selection, who are, usually at least, expected to act on their own view of law and testimony more freely and less technically than courts and regular juries. They are also generally expected to frame their decisions on broad views of justice, which may sometimes deviate from the strict rules of law."

The judgment is affirmed.

WIEST, C.J., and BUTZEL, CLARK, McDONALD, POTTER, NORTH, and FEAD, JJ., concurred.