
    [No. 13477.
    Department One.
    December 12, 1916.]
    Henry F. Suksdorf, Appellant, v. F. W. Suksdorf, Respondent.
      
    
    Arbitration and Award — Agreement—Validity—Statutes. Under Rem. 1915 Code, § 421, providing that an agreement to arbitrate shall be in writing, signed by the parties, and may be by bond in any sum, conditioned to abide the award, an agreement to arbitrate need not contain an express provision to “abide the award”; as that applies only to an arbitration by bond, and is implied.
    Same — Common Law Arbitration- — Statutes. Common law arbitrations are entirely supplanted in this state by Rem. 1915 Code, §§ 420-430.
    Same — Requisites—Proceedings—"Waiver of Objections. "Where both parties moved for judgment upon an arbitration, after a hearing; without objection to the agreement, the court acquired jurisdiction to confirm the award, and it is too late to object that the submission was insufficient in failing to agree to abide the award.
    Appeal from an order of the superior court for Spokane county, Blake, J., entered August 11, 1915, vacating a judgment upon an arbitration and award, after a hearing before the court.
    Reversed.
    
      W. C. Jones and Geo. W. Belt, for appellant.
    
      Davis & Heil, for respondent.
    
      
      Reported in 161 Pac. 465.
    
   Fullerton, J.

On March 23, 1915, Henry F. Suksdorf and F. W. Suksdorf, for the purpose of settling various controversies between them which extended over a number of years, entered into the following written arbitration agreement:

“This Agreement made and entered into between Henry F. Suksdorf, plaintiff herein, and F. W. Suksdorf, defendant herein, Witnesseth:
“That whereas a controversy has arisen and existed between plaintiff and defendant for many years, arising out of an accounting for 8,000 bushels of wheat received by defendant for plaintiff about twenty years ago and out of the right to purchase certain land near Spokane Bridge and near Spangle, about 500 acres, which plaintiff claims to have procured for defendant, and out of a promissory note of defendant for $1,800 to plaintiff, on which plaintiff claims that but $1,450 and interest has been paid, and it being admitted that defendant claims various credits for payments made, also for the value of services rendered plaintiff, and whereas defendant also claims other defenses and whereas said parties have been unable to agree as to the respective amounts for which each is entitled to credit and also disagree as to the validity of several of the claims and counterclaims and credits aforesaid.
“Now, therefore, The said parties do hereby agree to submit their differences as aforesaid, and all others since 1884 to the award of Thomas Conlan, W. C. Gray and Henry Rohwer, mutually selected by them for the purpose of arbitration.
“It is further agreed that the parties hereto waive the benefit or defense of the statute of limitations.”

A majority of the arbitrators found that F. W. Suksdorf was indebted to H. F. Suksdorf in the sum of $2,500. The award was filed with the clerk of the superior court of Spokane county and motion made before the court for its confirmation. Over the exception of F. W. Suksdorf, the award was confirmed and judgment rendered in favor of H. F. Suksdorf for the amount found due by the award. Thereafter F. W. Suksdorf filed a motion to vacate the judgment and order affirming the award, which motion was granted by the court “for the reason that the agreement to arbitrate contained no express stipulation that the parties thereto would abide by or perform the award.” From the order vacating the judgment on the award, H. F. Suksdorf prosecutes this appeal.

The court based its order vacating the confirmation of the award on the theory that, under Rem. 1915 Code, §§ 420-430, providing a statutory method for arbitration and award, it was necessary for the parties to agree to “abide the award,” in order to give the superior court jurisdiction to enter judgment upon an award without suit thereon. ' The only support for this position is found in Id., § 421, which provides:

“Said agreement to arbitrate shall be in writing, signed by the parties, and may be by bond in any sum, conditioned that the parties entering into said submission shall abide the award.”

To uphold the decision of the superior court it would be necessary to construe the foregoing section to mean that the arbitration agreement should be conditioned in terms that the parties should abide the award. We think the clause “conditioned that the parties entering into said submission shall abide the award,” applies solely to an arbitration “by bond” mentioned in the statute, and relates to the conditions of the bond, not to the agreement to arbitrate. Moreover, a specific agreement to abide the award is unnecessary in matters of arbitration if the statute does not expressly require it.

“The law implies an agreement to abide the result of an arbitration from the fact of submission.” Smith v. Morse, 9 Wall. (U. S.) 76.

See, also, Kingsley v. Bill, 9 Mass. 198; Pierce v. Kirby, 21 Wis. 126; Valentine v. Valentine, 2 Barb. Ch. 430; Robinson v. Templar Lodge, No. 17, I. O. O. F., 97 Cal. 62, 31 Pac. 609. It is true that, in the case of Zindorf Construction Co. v. Western American Co., 27 Wash. 31, 67 Pac. 374, we said:

“Section 5103 [Bal. Code, which is the same as § 421; Rem. 1915 Code] provides that the agreement shall be in writing, signed by the parties, and conditioned that the parties entering into the agreement shall abide the award.”

But the question was not an issue in that case and, while appropriate enough to the particular question, was not intended to lay down a general rule.

The respondent further contends that, in the event this court construes § 421 as not imposing the necessity of a recital that the parties will abide the award, the arbitration agreement falls under the common law rather than the statutory regulations for the submission of the controversy, since the agreement nowhere discloses that it is the intent of the parties to follow the statutory procedure.

This contention is based on the assumption that both the common law and statutory method of arbitration and award are existent in this state. But this court has ruled in a recent case that common law arbitrations have been entirely supplanted by our statutory regulations on the subject. See Dickie Mfg. Co. v. Sound Construction & Engineering Co., 92 Wash. 316, 159 Pac. 129. Possibly it might follow from this that, if the submission was insufficient under the statute the entire proceedings would be a nullity; but, as we have indicated, we cannot conclude that this agreement was thus insufficient. According to the trial court’s own view, it was deficient only because it did not contain an agreement to abide the award. This, as we say, is not enough on which to base a holding of insufficiency. Moreover, no claim of insufficiency was made when the appellant moved for judgment thereon; in fact, both parties to the agreement treated the matter throughout as a statutory arbitration until after judgment was rendered. Mere defects in the proceedings could not avail after that time. There must have been some such radical departure from the prescribed proceedings as to show want of jurisdiction in the court to render the judgment. There was no such departure here.

The court having properly acquired jurisdiction, its judgment was a final one, which could be vacated only in the manner and on the grounds prescribed by law for the vacation of judgments.

Reversed, with directions to reinstate the judgment.

Morris, C. J., Mount, and Chadwick, JJ., concur.

Ellis, J., concurs in the result.  