Opinion
January 24, 1949.
1. Building contracts — substantial performance.
The general rule is that a substantial performance of a building contract will support a recovery either on the contract or on a quantum meruit basis, provided the contractor has acted in good faith and has not intentionally failed to perform the contract.
2. Building contract — substantial performance — when rule cannot be invoked.
The rule of substantial performance cannot be invoked where the failure to perform is wilful, intentional or due to carelessness, unless the omission falls within the category of de minimis, or unless the omission though intentional, is due to a belief that strict performance is not required.
3. Building contract — substantial performance defined.
Substantial performance is not literal, full or exact performance in every slight or unimportant detail, but performance of all important particulars, and exists where the building or structure as a whole is not impaired and can be used after it is erected for its intended purpose; where the defects can be remedied without any great expenditure and without material damage to other parts of the structure and without injustice may be compensated for by deductions from the contract price; and the issue is one to be determined in each case with reference to the existing facts and circumstances.
4. Building contract — architect's certificate, when not necessary.
When the contractor has substantially complied with his contract, the refusal of the architect to issue his final certificate will not preclude the contractor from bringing his suit, else the contractor could recover only upon a strict or complete performance rather than upon a substantial performance.
5. Building contract — arbitration clause.
Although a building contract contains a clause requiring all disputes or claims or questions arising under the contract to be submitted to arbitration, the stipulation is as a general rule waived by the defendant when his answer did not request, and he proceeded to trial upon the merits without demanding, an arbitration.
6. Arbitration and award — building contract — right to revoke submission.
Either party to a written agreement for submission to arbitration has the right to revoke the submission before award is made.
7. Building contract — arbitration — offer of building contractor to submit to arbitration — effect of.
When the evidence justifies the conclusion that the building contractor had offered to arbitrate as provided for in an arbitration clause in the contract, the defendant may not defeat a suit on the ground that the issues should be submitted to arbitration.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Hinds County, HAROLD COX, Special Chancellor
Harmon W. Broom, for appellant.
The position and contention of the appellant, Standard Mill Work Supply Company, is now as it was on the hearing on the general demurrer and on the final hearing of this cause in the chancery court of Hinds County. That is to say, that the action on the part of the appellee was premature in that, (1) Certificate of N.W. Overstreet and Associates formed and constituted a condition precedent to the bringing of action under the contract on which the appellee was proceeding. (2) In the arbitration provision of the contract on which the appellee was proceeding, also is a condition precedent to the bringing of such suit; the appellee made no allegation or proof or certification of payment of labor and material bills to his workman and sub-contractor as provided for in the contract on which the appellee relied.
The contract agreement, which appears as Exhibit "C" to the pleadings and appears on page 31 of the Record, Article 5 of page 32 of the Record. Article 5: "Acceptance for final payment — Final payment shall be due thirty (30) days after full completion of the work, and inspection and approval by the artitect and owner. Before issuance of final certificate, the contractor shall submit evidence satisfactory to the architect and owner that all payrolls, matetrial bills and other indebtedness connected with the work have been paid."
Article 1 of the contract, appearing at page 31 of the Record, provides as follows: "Scope of work — the contractor shall furnish all of the materials and perform all all of the work shown on the drawing described in the specifications, including the following (quoting materials and work to be done) all in accordance with plans and specifications prepared by N.W. Overstreet and Associates, Jackson, Mississippi, and shall do everything required by this agreement including Exhibit attached hereto and made a part hereof."
At page 256 of the Record, there appears specifications under which the contract was to be performed by the appellee and set forth in said specifications, there appears the following, which we quote, and at page 9, Article 40: "The general conditions of the contract for the construction of buildings. Arbitration — All disputes, claims or questions subject to arbitration under this contract shall — be submitted to arbitration in accordance with the provisions, then obtaining, of the "Standard Form of Arbitration Proceedings of The American Institute of Architects", and this agreement shall be specifically enforceable under the prevailing arbitration law, and judgment upon the award rendered may be entered in the highest court of the forum, state or federal having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that either party may have against the other."
This court, in the case of Standard Construction Company v. Brantley Granite Company, appearing in 43 So. 300, ruled that in the absence of an allegation of fraud, on the part of the architect in refusing to give a final certificate to the contractor the suit by the contractor against the prime contractor was premature and that a judgment in favor of the contractor furnishing the labor and material be reversed and remanded. Quoting from the opinion "By article 6, it is likewise expressly provided that all granite must be equal to the samples which the contractor has submitted to the owner and must be satisfactory to the contractor." Article 9 expressly provides that "Payment will be made within thirty (30) days after the granite has been delivered and accepted by the architect." In the instant case the contracts are similar in that they require a final certificate and approval by the architect of the workmanship and materials furnished by the contractor and sub-contractor and even though there might be an implied allegation of fraud in the Bill of Complaint, there is no proof of fraud on the part of the architect in the testimony appearing in the record.
The Supreme Court in the Standard Construction Company v. Brantley Granite Company, supra, citing United States v. Gleason, 175 U.S. 590, 20 Supreme Court 233, 44 Lawyers Edition 234, quoted: "While we are to determine the legal end of this provision according to its own terms, it may be well to recall well settled rules in this branch of law. One is that if a party by his contract charges himself with an obligation possible to be performed, he must make it good, unless his performance is rendered impossible by the acts of God, the law or the other party. Difficulties, even if unforeseen, or however great, will not excuse him. If parties have made no provision for dispensation, the rule of law gives none nor in such circumstances can equity be interposed."
The court in its opinion, also cited Kihlberg v. U.S., 97 U.S. 398, 24 Lawyers Edition 1106; Sweeney v. U.S., 109 U.S. 618, 3 Supreme Court 344, 27 Lawyers Edition 1053; Dermott v. Jones, 2 Wallace (U.S.) 1, 17 Lawyers Edition 762; Cutter v. Powell, 6 T.R. 320, 2 Smith Leading Cases 1, 5 Supreme Court 1035, 29 Lawyers Edition 255; Chicago et al. v. Price, 138 U.S. 135, 34 Lawyers Edition 917.
While it is true that the Standard Construction Company v. Brantley Granite Company case was a suit at law, nevertheless, the same rule of law would apply in a case in equity as one at law, since a condition precedent such as requiring of the architect's certificate for final completion on the basis of workmanship and materials supplied according to plans and specifications and on the point of a condition precedent such as the arbitration of any dispute which might arise as is provided in the instant case, the appellee, Mississippi Steel and Iron Works would or should be barred from proceeding on an action on substantial performance or any other theory. The rule in equity is to the effect that one who seeks equity must first do equity, should be applied. The agreeing to abide by the architect's decision in the instant case in the contract agreement and in the specifications, the agreeing to a plan or method of arbitration is a condition precedent in the case of Smith v. Briggs, 3 Denio 73; Delaware and Canal Company v. Penn Coal Company, 50 N.Y. 265; Butler v. Tucker, 24 Wend 447; Smith v. Brady, 17 N.Y. 173; Wychkoff v. Myers, 44 N.Y. 143; Wangler v. Smith, 90 N.Y. 38, all cited in 5 Lawyer's Report Annotated 273.
The same cases cited above in regard to condition precedent of receiving architect's certificate, are also cited in regard to method of arbitration set forth in specifications of the architect in the instant case.
Substantial Performance. Volume 6, Ruling Case Law Contracts, paragraph 342: "By the common law, the party to a contract was compelled to show a literal performance of the stipulations of it before he could claim damages for a non-performance against the other."
"Expressions in some of the more recent cases seem to indicate a tendency to relax the rigor of this rule. Thus it is said that the law looks to the spirit of the contract and not the letter of it, and that the question therefore is not whether a party has literally complied with it, but whether he has substantially done so. Other courts have said that substantial and not exact performance accompanied by good faith is all the law requires in the case of any contract to entitle the party to recover on it."
(6 Ruling Case Law Contracts, paragraph 343, Substantial Performance of Building Contracts, was here quoted in full.)
(What constitutes substantial performance of building contract; here Sec. 344, 6 Ruling Case Law Contracts was quoted in full.)
Substantial performance is a beautiful theory, however, until a condition precedent, which in this case is contained in the contract and contract document, must be met, before the court has jurisdiction to proceed to the trial of a suit on the theory of substantial performance.
The trial court never acquired jurisdiction of any subject matter of a suit in this proceeding and should have dismissed the same for want of jurisdiction after all of the evidence was presented.
In the case at bar, the Bill of Complaint contains no averment that the architect had been guilty of fraud or had made such gross mistakes in his decision as necessarily implied bad faith or that he had failed to exercise an honest judgment in discharging the duty imposed upon him; hence the Bill of Complaint did not state a cause of action, it did not show the court that it had the power to hear and determine the subject matted as presented by the declaration and consequently did not bring the power of the court into action. The complainant failed to introduce any evidence which showed the court that it had the power to hear and determine the cause. The record is perfect and contains all the evidence and the pleadings in the case. No presumptions will attach. Presumptions have no place for consideration because evidence is disclosed and the averments are made and by nature of things there could have been no other or different evidence, or that the facts were otherwise then as stated in the Bill of Complaint and shown by the evidence. The record as a whole from the beginning to the end shows no cause of action, there being no cause of action shown by the averments in the Bill of Complaint nor by the evidence, the court had no jurisdiction. The court is a court of general jurisdiction but never-the less it must appear on the face of the Record that it had jurisdiction by the constitution or laws of the land both of the parties and the subject matter, before it can deprive the Standard Millwork and Supply Company of its right to property by its judgment.
Stevens Cannada, for appellee.
Let us state by way of introduction that appellant's brief recognizes the doctrine of substantial performance but seems to contend that it has no application unless the court has jurisdiction and that the failure of the contractor to obtain the final certificate of the architect is a condition precedent to the right of any court to take jurisdiction.
The doctrine of substantial performance is now basic in our body of general law pertaining to building and construction contracts. In addition to the text of Ruling Case Law cited by counsel for appellant, a more up-to-date statement is contained in 9 American Jurisprudence, beginning at Section 40, under the subject "Building and Construction Contracts", and in 17 Corpus Juris Secundum, Section 508, Page 1085, et seq, and a wealth of case law, including Annotations in 24 L.R.A. (N.S.) 327; 39 L.R.A. (N.S.) 591; 23 A.L.R. 1435; 38 A.L.R. 1383, and 65 A.L.R. 1297. A brief and succinct statement of the present text law is found in 9 Am. Jur. Section 40.
The historic jurisdiction of equity courts is based upon the hardships of the law and the fact that the suitor does not have an adequate remedy at law. The very grounds upon which the doctrine of substantial performance is predicated are equitable grounds. In this case, the contract provides that the 15% retainage would be due and payable thirty days after final certificate of acceptance of the work. The bill of complaint charges that the architect "is acting unreasonably, arbitrarily and without justification in withholding his final certificate authorizing the payment of the full amount of the contract." His refusal, therefore, constitutes a legal fraud and is at least inequitable and unjust under the facts of this case as found by the learned chancellor. If the chief architect could sit in his office literally bogged down in many plans and specifications and blueprints of various construction works, most of them more important than the cheap factory building here involved, and leave to some subordinate the details of inspection, certifying alleged defects, and refusing to issue the final certificate, then the contractor would never have an adequate remedy at law. It is charged in our bill that everything was done in completion of the contract except getting the final certificate, and that we had been unable to obtain such certificate after a long lapse of time and after the owner had taken possession of the structure and was using it for the purposes for which it was erected. The right to jurisdiction of a court of equity is fully recognized as an equitable right as ruled by the Wisconsin Court in Foeller v. Heintz, 118 N.W. 543, 24 L.R.A. (N.S.) 327, shown by Headnote 9. See also 17 C.J.S. sec. 508, 509, 510, pages 1085, 1087, 1088, 1092.
The leading Mississippi case on this question is Hickory Investment Company v. Wright Lumber Company, 152 Miss. 825, 119 So. 308.
In the case of McFadden Oates v. Ray, 185 So. 245, 246, Mr. Justice McGehee used this language: "Responding to this contention it is sufficient to say that whatever it is contemplated by the terms of a contract that it shall be performed to the satisfaction of the party for whose benefit services are rendered, or to whom goods are delivered, the rule is that an objection to, or a disapproval of, the manner of performance must rest on some reasonable and just basis, unless the transaction involves a matter of peculiar fancy, taste, or sensibility."
The equitable doctrine of substantial performance was applied by the Washington Court in the case of Harrild v. Spokane School District, 19 A.L.R. 811, to a contract of manufacture of tables and desks.
Mississippi has definitely approved the equitable doctrine of substantial performance and a statement of the doctrine is summarized in 9 Am. Jur. Section 40, page 30.
In the consideration of the demurrer, counsel for appellant did not contend that we were in an equity court when we should have been in a law court. Counsel was consistent on this point in the trial of the case on its merits. The last paragraph of the answer is nothing more nor less than a general demurrer. Counsel's real ground in support of the demurrer and in support of his contention that complainant could not recover anything was and is that it was and still is a condition precedent to the right of the complainant to recover in any court that the final certificate of the architect must be obtained. The book on Mississippi Chancery Practice by Griffith discusses this question in Sections 291 and 292. An excerpt from Section 292 reads: "Demurrer to the jurisdiction. — In the second place, a demurrer which challenges the jurisdiction of the court as to the person or the subject matter is a general demurrer, and for the stronger reason, in the third place, a demurrer which raises the question that no court has jurisdiction is also a general one. And while it is true that the ground of demurrer that 'there is no equity on the face of the bill' covers the whole case, yet it is also true that that ground so stated has by long practice come to mean with us a challenge upon the substance of the bill, as to whether it states a meritorious cause of action under the law, and hence if the jurisdiction is sought to be challenged the demurrer should state that cause separately in words appropriate to raise it, other than by the ground that there is no equity."
The real position of opposing counsel was and is that the Mississippi Steel and Iron Company had no cause of action that could be asserted in any court, and counsel refers to that as a total lack of jurisdiction. On the argument of the demurrer and on final trial, counsel relied almost exclusively on the case of Standard Construction Company v. Brantley Granite Company, 90 Miss. 16, 43 So. 300, erroneously cited in the copy of counsel's brief served on us as appearing in 44 So. 30. We have no such hard bargain in the builder's contract here under review. But, as above argued, the equitable doctrine of substantial performance is predicated upon the hardships of the common law and if there be an ideal case for the application of the doctrine it is the one now before this court. The architect did submit two certificates, one that the contract was 95% complete and the other that it was substantially complete, and these two certificates, we submit, prove beyond doubt that the contract had been substantially performed.
The second main point argued by counsel for appellant is that the contract embraced an arbitration provision and that this provision is a condition precedent to the bringing of suit. A sufficient answer to this argument is that appellant, as a party to the contract, did not plead in abatement the arbitration provision of the contract and did not embrace in its general answer any defense based on alleged failure to arbitrate. The first time counsel raised the question of arbitration was in the development of the proof on final hearing. It was incumbent upon counsel to plead the provision in abatement of our suit. Certainly, such a plea would not be in bar. Nowhere is it shown that appellant ever offered to arbitrate, and this question of arbitration seems to be an afterthought on the part of counsel for appellant. The rule is well settled that the filing of an answer on the merits without demanding arbitration constitutes a waiver of the right to contend that there should be an arbitration. A valuable Annotation on the subject "Waiver of Arbitration Provision in Contract", will be found in 117 A.L.R. 301. On Page 308 the learned Editor says: "The defendant's conduct in filing an answer or counterclaim, or tendering issue on the merits, or proceeding to trial on the merits, without demanding arbitration, in an action instituted on the contract by the other party in disregard of the arbitration provision, is clearly inconsistent with the notion that he considers the arbitration provision as still in effect, or anticipates availing himself of his rights thereunder, and, consequently, generally constitutes a wavier thereof."
Numerous citations are given in support of the statement just quoted. See also Borg v. Utah Construction Company, 117 Or. 22, 242 P. 600; Wilson v. Mattei (Cal.), 258 P. 452. Either party to the contract can waive arbitration. On page 314 of the above Annotation it is pointed out that the plaintiff by the institution of suit on the contract waives the provisions. When the plaintiff thus tenders an issue in court, without relying upon the arbitration provision, and the defendant pleads to the merits, without reference to arbitration, then there is a waiver by both parties.
Under our Mississippi statutes on arbitration and award either party may revoke an offer to submit to arbitration before a award is made. "Either party to a written agreement for submission to arbitration has the right to revoke the submission before award is made, regardless of whether the submission was by deed or that the agreement contained a provision against revocability or that valuable consideration was given for the agreement." Jones v. Harris, 59 Miss. 214.
In the case of Mississippi Fire Insurance Company v. Evans, 153 Miss. 635, 120 So. 728, our court expressly says: "The agreement to arbitrate does not oust the courts of jurisdiction", citing 5 C.J. 20, sections 7, 42, and 68.
On August 13, 1945, Mississippi Steel Iron Company, Inc., the appellee, which we will call the builder, entered into a contract with Standard Millwork Supply Company, a partnership, the appellant, which we will call the owner, under which the builder agreed to furnish the materials and construct for owner wall framing, roof framing, gable facia, a corrugated iron roof, etc., as constituent parts of a warehouse appellant proposed to erect in the community of Van Winkle, Jackson, Mississippi. The total price of the contract was $21,168.00, and the materials and work were to be in accordance with plans and specifications prepared by N.W. Overstreet, architect. The contract contemplated the issuance of progress certificates by the architect and the payment thereof by the owner from time to time as the work progressed, with a retainage of 15% until the job was completed. The roofing work was sub-let by the builder to Little Roofing Company. After the corrugated iron roof was applied to the north side of the building a strong wind greatly damaged that roof The Insurance Company adjusted that damage with the builder, who agreed with the owner to deduct $2040.00 from the contract price and the owner itself replaced the iron roof with an asbestos roof and released the builder from any further obligation with reference to the roof an the north side of the building. The owner, however, failed to pay the builder the full contract price for the materials and labor for the remainder of the job. The builder filed this bill against the owner, joining the Little Roofing Company as a party respondent, seeking to recover from the owner the balance owing under the contract. Complainant claimed that the principal unpaid balance aggregated approximately $6,551.36, plus interest, and also asked for a reasonable attorney's fee, as provided in the contract. The bill offered to pay the Little Roofing Company the amount owing it. The theory of the bill was that the contractor (1) had complied with its contract, but, if there had not been a literal compliance, there had been, (2) a substantial compliance, and it was entitled to recover in equity the balance of the contract price, less the cost of remedying any defects in the quality of materials and workmanship, and that the owner had refused to pay in full the five progress certifications already made by the architect, and that the architect had arbitrarily and unreasonably declined to issue his progress certificate for the retained fifteen percent. The answer denied the contractor had literally or substantially complied with the contract, and then set up that the suit could not be maintained because (1) the architect had not issued his final certificate as to the completed work. and (2) because the contract contained an arbitration provision and the contractor had not resorted to arbitration.
The Chancellor awarded a decree to the builder in the total sum of $6,890.58, which consisted of the aggregate of the unpaid balances of the five progress certifications of the architect, plus legal interest on each from the dates of the respective progress certificates, plus the retained fifteen percent of the total contract, $500.00 attorney's fees, and one percent sales tax, less $250.00 to repair the defects in the roof. From this decree the owner appeals. The Little Roofing Company does not appeal.
Therefore, the questions presented on this appeal are:
First — Does the evidence justify the conclusion of the Chancellor that the contractor had substantially complied with the contract? In other words, can we say he was manifestly wrong in so holding?
Second — Does the fact that the architect, under the contract and the evidence in this cause, declined to issue his final certificate that the work had been completed in accordance with the contract bar complainant from prosecuting this suit?
Third — Does the arbitration provision in the contract preclude complainant from proceeding to final decree in this cause?
We will discuss and decide these three questions in the order stated.
The common-law rule required literal performance of building contracts, but the American courts (Hn 1) generally hold that substantial performance of such contracts will support a recovery either on the contract or on a quantum meruit basis. Three reasons are given for that holding. One is that materials and labor upon a building as such that even if rejected by the owner of the land he receives benefit thereof. Since the owner receives the benefits of the builder's labor and materials, it is equitable to require the owner to pay for what he gets. The second reason is that it is next to impossible for a builder to comply literally with all the minute specifications in a building contract. And the third is that the parties are presumed to have impliedly agreed to do what is reasonable under all the circumstances with reference to the subject of performance. 6 R.C.L., page 667, Sec. 343; 9 Am. Jur., page 30, Sec. 40; 17 C.J.S., Contracts, Sec. 508, page 1085; Hickory Investment Co. v. Wright Lumber Co., 152 Miss. 825, 119 So. 308.
(Hn 2) It is a necessity in support of the foregoing doctrine that the contractor must have acted in good faith and not intentionally failed to perform the contract. The rule of substantial performance can not be invoked where the failure to perform is wilful, intentional or due to carelessness, unless the omission falls within the category of de minimis, or unless the omission, though intentional, is due to a belief that performance in that respect is not required. 9 Am. Jur., page 31, par. 41.
The question of substantial performance is one to be determined in each case with reference to the existing facts and circumstances. (Hn 3) Substantial performance is not literal, full or exact performance in every slight or unimportant detail, but performance of all important particulars. Substantial performance exists where the building or structure as a whole is not impaired; "where the building or structure can be . . . used after it is erected for its intended purpose; where the defects can be remedied . . . without any great expenditure, and without material damage to other parts of the structure, and may without injustice be compensated for by deductions from the contract price . . .". 17 C.J.S., Contracts, Sec. 509, page 1090.
Dealing now with the proof which pertains to this question, one witness testified he had never seen a better corrugated metal roof. Another said it was not a perfect job but "about as good a job as you could expect with a roof of that kind". Several testified that they had inspected the roof the morning following a very hard rain and they saw no indications of a leak or defect of any kind. There was further testimony that the contractor corrected all of the defects pointed out by the architect. On the other hand, there were witnesses for the owner who said they thought the "entire roof should be taken off and replaced by another". Between the extremes of a perfect roof and the necessity of entirely removing and replacing the roof, other witnesses said there were some defects and estimated the cost of remedying such defects, one saying $50.00 would be sufficient.
Also the architect in one of his certificates reported that in his opinion the work complied 95% with the requirements of the plans and specifications and in another certificate he said the work complied substantially with the plans and specifications.
Again, it is in evidence that the owner itself constructed vents through this roof and naturally in so doing the workmen had to walk upon the roof and it was the opinion of those having sufficient experience to qualify them as experts on corrugated roofs, that walking upon this roof caused a sag therein. If this evidence is correct, and the Chancellor had a right to believe it, this defect in the roof was no fault of the contractor. In this connection it might also be stated that these vents were placed in the roof by the owner because he had moved into the building and placed his machinery and equipment therein and had proceeded to operate his business in the building.
It further appears from the testimony that the purlins, which are the supports for the roof, were perhaps too far apart and this fact resulted in a greater sag in the roof by walking thereon than would have occurred had the supports been nearer together. But there is testimony that this change in the spacing of the purlins was made by consent of the architect. So that not only does there appear a sharp conflict as to whether the roof was constructed according to the plans and specifications, but there is a question whether the defects, if any existed, were the result, in whole or part, of the acts of the owner and also by consent of the architect.
In view of all of this it is evident, we think, that this Court can not say that the learned Chancellor was manifestly wrong in his conclusion that the contractor had substantially complied with this contract.
In this connection, it is pertinent to note that the Chancellor concluded that it would take $250.00 to repair whatever defects existed in the roof. The testimony is vague and uncertain as to the amount necessary to make the repairs. The Chancellor did the best he could. We can not say that a more accurate amount could have been deducted from the evidence on that question in this record.
Dealing now with the second question, Article 5 of the Contract is as follows:
"Final payment shall be due thirty (30) days after full completion of the work, and inspection and approval by the Architect and owner. Before issuance of final certificate, the contractor shall submit evidence satisfactory to the Architect and owner that all payrolls, material bills and other indebtedness connected with the work have been paid."
(Hn 4) The architect failed and refused to issue his final certificate that the completed work complied with the contract. Appellant says this precludes the contractor from bringing this suit. We do not think that is the result. The recognized right to sue for substantial compliance with the contract necessarily means there has not been literal compliance therewith. If the contractor must obtain from the architect a final certificate of complete compliance before the contractor can bring a suit, he could never avail himself of the right to sue for substantial compliance. See MacDonnell v. Vitille, 111 N.J. Eq. 502, 162 A. 738; Harrild v. Spokane School District, 112 Wn. 266, 192 P. 1, 19 A.L.R. 811.
The answer raised no question as to payment of bills by the contractor.
As to the third question, Article 40 of the Contract provides:
"All disputes, claims or questions subject to arbitration under this contract shall be submitted to arbitration in accordance with the provisions, then obtaining, of the 'Standard Form of Arbitration Proceeds of the American Institute of Architects' and this agreement shall be specifically enforceable under the prevailing arbitration law, and judgment upon the award rendered may be entered in the highest court of the forum, state or federal, having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that either party may have against the other.
(Hn 5) The answer in this case did not request an arbitration and ordinarily the action of a defendant in proceeding to trial upon the merits without demanding an arbitration is a waiver of the right for arbitration. Annotation, 117 A.L.R. 308.
(Hn 6) Again, either party to a written agreement for submission to arbitration has the right to revoke the submission before award is made. Jones v. Harris, 59 Miss. 214; 3 Am. Jur. page 856, Secs. 30 and 31. (Hn 7) And a final and complete answer to this contention is that under testimony in this case the Chancellor could have concluded that the builder had offered to arbitrate this question.
Affirmed.