Kann v. Bennett

Citations

• 234 Pa. 12
• 82 A. 1111
• 1912 Pa. LEXIS 604

Syllabus

<p>Arbitration — Building contract — Award of architect — Incomplete award</p> <p>1. An award of an arbitrator 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.</p> <p>2. Where a building contract provides that matters in dispute shall be referred to the architect, whose decision shall be final and conclusive, and the architect in making his award certifies that he had not included certain items of materials furnished, as to which mechanics’ liens had been filed, the award is incomplete and cannot be sued upon.</p> <p>3. In such a case the owner might have waited until the mechanics’ liens had been adjudicated, or he might have waived his rights as to the items omitted, or with the acquiescence of the contractor he might have waived the submission of such items, but as he did none of these things, he is not entitled to sue upon the incomplete award.</p> <p>4. Where the parties to a building contract select the architect as the person to whose final decision they are willing to submit the preliminary question of the contractor’s default, and the ultimate one of the determination of the account between the parties, the award of the architect on these subjects is final so long as he acts independently and without fraudulent collusion with the owner. Partiality and some improper conduct on the part of the arbitrator in making the award will not impeach it, unless the party benefited thereby be implicated in the misconduct.</p> <p>5. Where the award of an architect in a building contract is attacked for fraud, mere general allegations of fraud without stating the facts which sustain them are not sufficient. The facts upon which the charge is made must be shown, inasmuch as fraud is largely a conclusion of law from facts stated.</p> <p>6. The rule that the award of an architect as to matters expressly made subject to his decision will not be disturbed does not at al