Eckert v. Davis

WOOD (Parker), J. John A. Eckert, Helen J. Eckert, and John A. Eckert, Jr., owners of certain land, entered into a contract with Ernest B. Davis, a contractor, whereby the contractor agreed to construct an apartment house on the land. The contractor appeals from a judgment confirming an award that was made in favor of the owners in an arbitration proceeding.

Appellant contends that the award should be set aside for the reason that an arbitrator, who allegedly was appointed by appellant, was not permitted to participate in the arbitration proceeding.

Paragraph 16 of the contract provided, in part: “As between the parties hereto, all questions as to the rights and obligations arising under the terms of the contract, the plans and specifications are subject to arbitration. In ease of dispute either party hereto may make a demand for arbitration by filing such demand in writing with the other. One arbitrator may be agreed upon, otherwise there shall be three, one named in writing by each party within five days after demand is given, and a third chosen by the two appointed. Should either party refuse or neglect to appoint said arbitrator or to furnish the arbitrators with any papers or information demanded he or they are empowered by both parties to proceed ex parte. If there be one arbitrator his decision shall be binding ; if there be three the decision of any two shall be binding. Such decision shall be a condition precedent to any right of legal action, and wherever permitted by law it may be filed in Court to carry it into effect.”

A dispute arose between the owners and the contractor regarding the alleged failure of the contractor to perform the work according to the terms of the contract. On March 28, 1955, Mr. Bledsoe, attorney for the owners, mailed a letter to the contractor wherein he made a demand for arbitration under the terms of the contract. In the letter, Mr. Bledsoe stated that F. Rodman Woelfle was the arbitrator selected by the owners. On April 8, 1955, Mr. Stoddard, attorney for [640]■the contractor, mailed a letter to Mr. ■ Bledsoe wherein he stated: “. . . Mr. Davis [the contractor], having had unsatisfactory experiences with arbitrators in the past, declines to submit the matter to arbitration and intends to pursue his remedy by foreclosure of the lien.” On April 19, 1955, Mr. Woelfle mailed notices to the parties and their attorneys, stating therein that an arbitration hearing would be held at Mr. Woelfle’s office on May 2, 1955. The contractor did not appear personally or by attorney at the hearing on May 2, and Mr. Woelfle, as the sole arbitrator, held the hearing. On Máy 16 Mr. Woelfle made an award of $3,079 and $150 as costs, in favor of the owners. The owners filed a petition in the superior court for an order confirming the award. The contractor' filed objections to the petition, and he stated therein that he and his arbitrator were not permitted to appear at the hearing. The award was not confirmed.