
    [No. 12897.
    Department Two.
    January 11, 1916.]
    Russell & Gallagher, Respondents, v. Yesler Estate, Incorporated, Appellant.
      
    
    Arbitration and Award — Agreement to Arbitrate — Construction —Building Contracts — Decision op Architect — Finality. An architect is not the final arbiter of claims for extras through changes in the plans, or for demurrage on account of delay, under a building contract providing that he shall value and appraise any alteration required and determine the amount to be added or deducted, and that, should any dispute arise respecting the true value thereof, the same shall be arbitrated by appealing to the city superintendent of buildings, whose decision shall be final and binding, that the decision of the architect shall be final in case of disputes as to the work to be done, and providing for demurrage in case of delay “subject to the right of arbitration above mentioned”; and where the arbitrator agreed upon refuses to act, the question is one for the courts, in view of the rule favoring the right to resort to the courts where the intention is doubtful.
    Appeal — Review—Findings. Findings on conflicting evidence will not be set aside unless the evidence preponderates against them.
    Appeal from a judgment of the superior court for King county, Humphries, J., entered December 14, 1914, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.
    Affirmed.
    
      Hughes, McMicken, Dovell & Ramsey and R. J. Venables, for appellant.
    
      Preston & Thorgrimson, for respondents.
    
      
      Reported In 154 Pac. 188.
    
   Parker, J.

This is an action to recover a balance due upon a building contract, including compensation for extra work and material. The case was tried before the court without a jury, resulting in findings and judgment in favor of the plaintiffs, from which the defendant has appealed.

In April, 1913, respondents, Russell & Gallagher, entered into a contract with appellant, Yesler Estate, Incorporated, agreeing to construct a certain portion of a building about to be constructed upon one of its lots in Seattle. The provisions of the contract, so far as here necessary to notice them, are as follows:

“That the said party of the first part (respondents), for and in consideration of the payments to be made to them by the said second party as hereinafter provided, do hereby covenant, contract and agree to do and fully complete, by the tenth day of June, 1913, all of the digging, trenching, cribbing, pumping, cleaning, excavating; and build the foundation and basement walls, piers and posts for a building to be erected, on the site described in the specification, according to the plans, specifications and drawings (which are declared to be a part of this agreement), made by A. Wickersham, architect (acting as agent for said owner), in a good, substantial and workmanlike manner, to the satisfaction of and under the direction of said architect, . . .
“It is also further agreed that the said party of the second part, may make all alterations by adding, omitting, or deviating from the aforesaid plans, drawings and specifications, or either of them, which it shall deem proper and the said architect shall advise, without impairing the validity of this contract, and in all such cases the said architect shall value or appraise such alteration, and add to or deduct from the amount herein agreed to be paid to the said first party the excess or deficiency occasioned by such alteration, but should any dispute arise respecting the true value of any works added or omitted by the contractor, the same shall be arbitrated by appealing to the superintendent of buildings for the city of Seattle, who has been hereby mutually selected and whose decision shall be final and binding on all parties, each party paying one-half of the fee. It is further agreed that in case any difference of opinion shall arise between said parties in relation to the contract,' the work to be or that has been performed under it, or in relation to the plans, drawings and specifications, the decision of the said architect shall be final and binding on all parties hereto.
“It is further agreed should the contractor fail to finish the work at the time agreed upon, they shall pay to or allow the owner, by way of liquidated damages, the sum of twenty dollars per diem, for each and every day thereafter the said works shall remain incomplete, subject to the right of arbitration above mentioned.”

The real controversy is over claims of respondents for extra work and material required of them because of change in plans of the structure, and also a claim of demurrage made by appellant against respondents because of delay in the completion of the work.

It is contended by counsel for appellant that, under the terms of this contract, the architect became the agreed arbiter of the disputed items of charge claimed by respondents, and also the disputed item of demurrage claimed by appellant against respondents. We note that the superintendent of buildings declined to act as arbiter, and that, therefore, there is no question of the necessity of submitting any disputed matter to him.

We are not able to gather from the language above quoted an intention on the part of the parties thereto to make the architect the arbiter of the questions here involved, since there is not here involved any question of the proper performance of the work or the proper quality of' the material entering into the structure, but only the question of the value of the extra work, and possibly the quantity thereof, and the demurrage, all of which questions seem by the terms of the contract to be subject to arbitration before the superintendent of buildings.

It seems to us that the language of the contract referring to such arbitration negatives the idea of the power of the architect in that respect, not only as to the value of the extra work, but also as to the amount of the demurrage, if any, chargeable to the respondents. It is, in any event, not at all certain that the parties to the contract agreed to make the architect the final arbiter of any of the questions here involved. This of itself would entitle respondents to resort to the courts. While the law favors the settlement of disputes by arbitration, it will compel parties to resort thereto only when the terms of their contract are clear and certain in showing they have such intention. In the early case of Van Horne v. Watrous, 10 Wash. 525, 39 Pac. 136, Judge Stiles, speaking for the court, at page 527, observed:

“Courts will enforce contracts to arbitrate disputes and make the decision of arbitrators final where the parties to a contract make it clearly to appear that such was their intention; but whenever they leave it doubtful whether such a method of settling a disputed question was intended to be left to the final decision of arbitrators, the construction is in favor of the right to resort to the courts for redress in the usual manner.”

In Sweatt v. Bonne, 60 Wash. 18, 110 Pac. 617, we said:

“Whatever the authority of an architect may be as an agreed arbiter between an owner and a contractor, the law will not regard the owner bound by a decision of the architect, except in so far as the owner has unmistakably agreed to be so bound. Long v. Pierce County, 22 Wash. 330, 61 Pac. 642; County of Cook v. Harms, 108 Ill. 151; City of Elgin v. Joslyn, 136 Ill. 525, 26 N. E. 1090; Chicago E. I. R. Co. v. Moran, 187 Ill. 316, 58 N. E. 335; Fay v. Muhlker, 20 N. Y. Supp. 671; Fuller & Co. v. Young Co., 126 Fed. 343.”

This observation is, of course, applicable to the rights of the contractor as well as to those of the owner.

All other questions here involved are of fact only. We think it would be unprofitable to analyze the evidence in detail, and feel that we are not called upon to say more than that we have painstakingly reviewed all of the evidence found in the statement of facts, and are inclined to the view that it preponderates- in favor of the conclusions reached by the trial court, both upon the question of respondents’ claims for extra work and material and upon appellant’s claim of demurrage. In any event, we cannot say that it preponderates to the contrary. We think the case does not call for further discussion.

The judgment is affirmed.

Morris, C. J., Bausman, Main, and Holcomb, JJ., concur.  