Baxter v. Sisters of Charity

15 La. Ann. 686

• Court: Supreme Court of Louisiana
• Decided: December 15, 1860
• Status: Published

Opinions

Voorhtes, J.

The plaintiff claims to have furnished materials for a building, owned by the defendants, who had contracted with one.D. Mulligan for its erection. The attested account having been served on the defendants, and these parties notified by the contractor not to pay, the matter was submitted to the arbitration of two persons, chosen by the plaintiff and the contractor. There being a difference of opinion between the arbitrators, an umpire was appointed by them. Subsequently an award was rendered in favor of the plaintiff; but the contractor’s arbitrator refused to sign the instrument.

This suit was brought, upon the defendants’ declining to pay the amount of the award, on account of the contractor’s notification that he had protested against the validity of the award and objected to the payment of the plaintiff’s claim.

The matter was submitted to the award of arbitrators'under the provisions of the third and fourth sections of the Act relative to Mechanics’ lien, 1855, p. 327, gg 3,4. The statute provides: “ that whenever any account of labor performed on a building erected under a contract as aforesaid, shall be placed in the hands of the owner or his authorized agent, it shall be his duty to furnish his contractor with a copy of such papers, in order that if there be anv disagreement between such contractor and his creditor, they may by amicable adjustment between themselves, or by arbitration, ascertain the 'true sum due."______“ That if any such contractor shall dispute the claim of his journeyman or other person for work or labor performed as aforesaid, and if the matter cannot be adjusted amicably between themselves, it shall be submitted, on the agreement of both parties, to the arbitrament of three disinterested persons, one to be chosen by each of the parties, and one by the two thus chosen, and the decision, in writing, of such three persons, or any two of them, shall be final and conclusive in the case submitted.”

The question then arises, how is this submission to arbitration to be made ? “ A submission, ” says the Code, Art. 3067, “ must be reduced to writing. ” The power of arbitrators is limited to what is explained in the submission. ” Art. 3071.

There are no specific provisions to the contrary in the statute. When the lawgiver referred these matters to amicable compounders or to arbitration, without providing for the mode or manner of making the submission, he necessarily had in view the existing legislation upon the subject-matter. Any other construction would render inoperative the provisions of the statute, upon which the plaintiif bases his action. 7

The plaintiff’s claim has not been submitted in writing to arbitrators, and it appears that the contractor has brought an action to set aside the award, and has notified the defendants of this proceeding. It is said that the reason why the matter was not submitted in writing was the refusal of the contractor to sign the submission. Be this as it may; in point of fact there was not a written submission : consequently the award is not binding. C. C. Arts. 3096, 3097; C. P. Arts. 444, 445, 459, 460, It is advisable, however, merely to non-suit the plaintiff, inasmuch as he is now engaged in a litigation with the contractor upon the issues involved in this instance.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff’s demand be rejected, as in case of non-suit, with costs in both courts.

Land, J, absent.