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Excerpt from Reports of Cases Decided in the Eastern District Court: Of the Colony of the Cape of Good Hope
The agreement to refer all disputes to the arbitration of the architect is binding equally on plaintiff and defend ant; under the contract this reference to arbitration is clearly a condition precedent to litigation and not merely a collateral agreement to refer matters to arbitration; and it is settled law that though the latter is revocable, the former is irrevocable (scott vs. Avery, 5 H. C. 811; Davies vs. South Brit. Insurance Co., 3 J ut. Consequently defendant could not revoke agreement by merely saying, I dismiss my architect. If building owner can dismiss architect at will, while contractor cannot, architects would be coerced into giving certificates favourable to owner. An architect is really in the position Of an arbitrator, and the English decisions shew that an arbitrator once appointed is irremovable except in case of fraud, collusion, or refusal to act (stevenson vs. Watson, 4 C. P. Div. 159; Sudbrooke vs. Barrett, 36 L. T. (n. S.) The same rule follows from the roman-dutch text writers (voet, 19, II.
Blaine! (for defendants). There seems to be no decided case exactly in point, so the whole tenour of the contract must be considered. When plaintiff tendered for contract he made no mention of architect, or of work being paid under his certificate. This proviso was inserted in the con tract as a safeguard for defendants, and the architect was solely their agent. The work was to be done to the satis faction of the committee or their agent; so they need not have appointed one at all, and when they did they could dismiss him at will. Kemp vs. Rose, 1 Gift. 258, cited in Scott vs. Avery (supra), shews that arbitrator's decision not always final; where bias is suspected, even without fraud.
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