¶1 (dissenting).
¶2 The building contract between the Jungs and the Gwin Construction Company contained a clause which provided for arbitration in the event of a dispute arising during the construction of the building and also provided that the cost of arbitration be fixed as the arbitrators saw fit. A dispute arose and arbitration was had, the costs of the arbitration being proportioned on a basis of two-thirds upon the 'Jungs and one-third upon Gwin. The Jungs appealed to the courts as the law and their contract permitted, with the result that the findings ’of the arbitrators upon the issue between the owners and the contractor was set aside. ‘ In the language of the court “reversing, setting aside, annulling, and vacating” the award of the arbitrators, Jung v. Gwin, 174 La. 111, 123, 139 So. 774, 776.
¶3 Nothing was said by the district judge or by the Supreme Court upon the question of the costs of arbitration, and .when it was later sought to have the same district court, which had rendered the judgment, assess the costs of arbitration as part of the costs of the suit it declined to do so, obviously for the reason that they could not properly be regarded as costs of the litigation, and I think that this holding by the court was correct. The contractual obligation of the Gwin Construction Company was, so far as the costs of arbitration were concerned, to pay such part thereof as the arbitrators might deem proper to assess upon it. Their finding in this regard was set aside by the final arbitrators, the Supreme Court of Louisiana, without determining how the costs should be borne. It is conceivable that if the question of the' costs of arbitration had been considered by the court it might have put the entire cost upon the owner of the building or have proportioned it in some way considered equitable. However, the matter was never the subject of judicial consideration and the contingency under which the Gwin Construction Company contracted to be liable for the costs, to wit, their assessment by the original arbitrators or by their successors, the courts, has not been realized. I cannot agree that in determining the issue presented by the main question before the arbitrators adversely to the Gwin Construction Company at its cost, that the word “cost”- includes anything more than the costs of the litigation, and I am in accord with the position first taken by the learned district judge in discharging the rule to tax the fees of the arbitrators.
¶4 I, therefore, respectfully dissent.