Doyle v. Hunt Construction Co.

SHINN, P. J.

This is an appeal from a judgment modifying and confirming as modified an award of arbitrators appointed pursuant to the arbitration provisions of a contract under which Hunt Construction Company constructed a dwelling house for John R. Doyle and Fern Doyle.

The matter was heard upon the petition of Doyle for an order confirming the award and the motion of the construction company for an order vacating, modifying or correcting it. Two of the arbitrators signed the award, which listed 19 items, upon seven of which, sums were allowed the owners. The total amount awarded was $1,003.61. Item number 1 was for $319.98. The award was confirmed as to this item and it was modified by striking out all the other items, although as to 12 of them the claims of the owners were found to be unjustified.

The basis of the court’s decision was that by agreement made, when construction work was practically completed, the parties had settled their dispute as to the work which was necessary in order to complete the job in a manner satisfactory to the owners, upon the basis of which agreements the court determined that there remained in controversy, and subject to arbitration, only said item number 1, which related to the finishing of work on a balcony. It was also found that the owners had paid the full contract price. The owners, Mr. and Mrs. Doyle, appeal from the judgment.

It is not contended on the appeal that there was insufficient evidence to justify the above mentioned findings. We must therefore consider the points that are raised in light of the fact that at the time the arbitration was had there was but a single item of the work in controversy.

At the inception of the trial the court called attention to the fact that the parties had not followed the procedure prescribed by section 1282, Code of Civil Procedure, to obtain a judgment declaring the duties of the parties to go to arbitration and defining the matters to be submitted to the arbitrators for decision. The steps taken prior to the arbitration may be summarized as follows: The attorneys of the parties had been appointed as two of the arbitrators, and they were unable to agree on a third arbitrator; the agree

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raent provided no other method for his selection. On March 14, 1952, the owners made a motion upon notice in the superior court for the appointment of a third arbitrator. The court made an order appointing a third arbitrator, stating in the order that he was to act with the others to arbitrate all controversies in accordance with the plans and specifications and the building contract. No findings were made by the court and there was no hearing and no determination as to the matters which were in dispute, nor as to the matters as to which either of the parties refused to go to arbitration. On May 23, 1952, the contractor, upon notice, moved the court for a summary trial and a limitation of the issues to be arbitrated. Without making any finding the court denied the motion, the effect of the order being to leave the subjects of the motion for future determination. Upon the hearing of the motion, no order was made except to place the motion off calendar. Thereafter the owners made up and submitted to the arbitrators a list of all items to be arbitrated, namely, the 19 items above mentioned. The contractor made written objection to the consideration of the items listed and submitted documents upon which its objection was based, namely, the written agreements of the parties. The objection was disregarded and two of the arbitrators, namely, the owners’ attorney and the third member, proceeded to a hearing and made the award in question.