ANDRAE CRACCHIOLO and CARMELITA CRACCHIOLO, his wife, Appellants,
JOE CARLUCCI and W. M. KILLEN, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. William G. Hall, Judge.
Judgment reversed and case remanded for further proceedings.
Messrs. Knapp, Boyle & Thompson, for Appellants.
Messrs. Misbaugh & Fickett, and Mr. William S. Dunipace, for Appellees.
LaPrade, J. Stanford, C. J., and Morgan, J., concur.
[62 Ariz. 285] The appellants, hereinafter called the owners, and the appellee, Joe Carlucci, hereinafter called the contractor, made a building contract on July 16, 1941, for construction of a tourist court or "motel" near Tucson. The appellee, W. M. Killen, was surety on the contractor's bond for faithful performance of the contract. The motel was to be completed in accordance with an architect's plans and specifications on or before November 15, 1941, for a price of $ 39,875. [62 Ariz. 286] In December 1941, the contractor turned the motel over to the owner, who opened the motel for business.
The contractor claimed that there was due him more than $ 14,000 on the contract and extras, which the owners refused to pay, claiming nonperformance of the contract in accordance with the plans and specifications, and damages for failure to complete the work on time. The dispute was submitted to arbitration by written agreement on March 11, 1942. The arbitrators made a written award on June 5, 1942, and a supplemental award on June 15, 1942. The arbitrators found, among other things, that the contractor had failed to comply with his contract in six particulars, and required that the contractor remedy these defects by July 31, 1942. The owners were required to pay the contractor all sums owing over $ 5,000, which they did.
The contractor, during June, July, and August, 1942, attempted to comply with the arbitration award, and by the end of August did substantially complete all work on five of the six defects, but failed to comply with Item 15 of the award, the largest and most costly part of the work to be done.
Item 15 of the award, which the contractor failed to fulfill, concerns the regrading and repaving of the motel driveway. This driveway, paved in form of a horseshoe, with thirty-two cabins around the outer edge, contains approximately 1800 square yards of paving. The original plans and specifications required that the driveway paving be not less than twelve inches below the floors of the motel cabins and have a drainage slope of at least twelve inches from the back of the property to the highway so as to afford proper drainage. When the contractor finished with his original work in December 1941, the floors of several cabins were almost flush with the driveway pavement, and the driveway had a drainage slope of only four inches from back of the property to the highway. The arbitrators' award required that this driveway be regraded and [62 Ariz. 287] repaved under competent engineering supervision, and "that in no case shall the finish paving grade at entrance to any cabin be less than six inches below finish floor of that cabin."
Shortly after the award was rendered, the contractor employed two of the arbitrators, who were qualified engineers and architects, to draw plans for regrading and repaving the motel driveway in accordance with Item 15 of the award. After several delays, due chiefly to the contractor's insistence that the plan for regrading and repaving should be as simple and as inexpensive as possible, "Plan F" was designed by the contractor's two engineers, and approved by the contractor shortly before September 9, 1942. The owners were asked to approve this plan, but took no action for about two weeks, and before they did approve the plan, the contractor told his engineers to "Forget it, we are going to court," and proceeded with his lien foreclosure action.
In the trial of the case, the two engineers and architects, who had been the arbitrators, testified that it would cost more than $ 8,000 to comply with "Plan F." The contractor testified the cost of compliance with "Plan F" would be not more than $ 2,500. A paving contractor, Mr. F. H. Martin, testified that compliance with "Plan F," with a drainage slope of between fifteen to eighteen inches, would cost $ 3,104.07. ("Plan F" specified a drainage slope of approximately thirty inches.) The court adopted the paving contractor's cost figure, and entered judgment for failure to comply with the award as interpreted in "Plan ...