dissent">Mr. JUSTICE JONES,

dissenting:

The majority confuse the right to terminate under the terms of the contract with the propriety of termination. It must follow of course, be presumed, that the arbitrators understood that the owner had the right under the contract to terminate the work for if that had not been done they would not have been called upon to arbitrate. The majority, apparently being dissatisfied with the factual resolution of the case by the arbitrators, have held that the arbitrators have “exceeded their powers” and did not arbitrate on the basis of the contract because they did not accord the owner the right to terminate the work. This position cannot be supported by the facts presented by this case and I accordingly respectfully dissent.

The propriety of termination of the work under the contract was the central concern of the arbitrators and was well within the powers assigned to them by the agreement to arbitrate and the statute on arbitration. The subject contract was entered into on February 25,1975, with construction to begin immediately. The plans and specifications for the house were unusually detailed, the anticipated result being a unique custom-built structure. Trouble between the contractor and the architect-owner began almost immediately, beginning with disputes over methods and materials used in pouring foundation concrete. The architect-owner spent increasing amounts of time on the job site as construction progressed, and each party sent out a blizzard of letters to the other as the June 15 date of expected completion drew near. The owner-architect alleged literally dozens of major and minor failures to comply with specifications and plans as well as generally incompetent construction practices. In addition, it became clear that the June 15 completion date would not be met. The contractor alleged lack of cooperation where materials were expected from the owner-architect, intermeddling on the job site, and harassment every step of the way.

Complaints, accusations of theft, and demands went back and forth concerning basement waterproofing, framing, roof decking, backfilling, flashing, and many other problems, until the owner-architect rejected the roof flashing and refused to allow construction to continue until it was removed and replaced properly. Dissatisfied with the contractor’s response, on June 10, the owner-architect ordered all workers off the job and declared the contract terminated. When he found workers continuing to shingle over the rejected flashing, he called the sheriff of Madison County and had the contractor and its employees ejected. He took over the work pursuant to the terms of the contract, engaged another contractor to repair many sections of the structure which he considered inadequately done, and completed the construction. The contractor had received almost no progress payments thus far, and on February 26,1976, requested arbitration concerning its right to payment, under the terms of the contract which called for arbitration of all disputes not related to “artistic effect.” The owner-architect counterclaimed under a contract clause entitling him to receive from the contractor any cost in excess of bid price necessary to complete the structure, after a rightful contract termination.

The arbitration was done under the auspices of the American Arbitration Association, under Construction Industry Arbitration Rules. A list of prospective arbitrators was furnished to the parties; each struck equal numbers of undesired names until the three who would serve remained. On the date set for commencement of the hearings, only two of the arbitrators could be found and the parties and their attorneys present agreed to continue using two arbitrators. No officiál recording or transcript of the proceedings was made, but the owner-architect received permission to use his own tape recorder.

The arbitrators Angelo Corrubia and John W. Bland, after hearing testimony and viewing affidavits and exhibits for two days, entered an award on October 19, 1976, that the owner-architect should pay to the contractor the sum of *26,400.

The owner-architect sought review of this award in the circuit court of Madison County. A transcript of the tape recordings made at the arbitration hearing was admitted into evidence. On appeal of the arbitration findings the trial court found, inter alia: (1) that the arbitrators’ lack of legal training and experience created an air of considerable informality at the hearings; (2) that no partiality on the part of the arbitrators was indicated by their comments, such comments being attributable to the informal atmosphere; (3) no specific findings of fact were made by the arbitrators, other than a bare monetary award; and (4) there was no basis upon which to find the award improper, unfounded, or against the manifest weight of the evidence. The award of the arbitrators was confirmed.

The owner-architect urges that the action of the arbitrators shows that the arbitrators deviated from unambiguous provisions in the contract, since the arbitrators must have found that the contractor breached the contract. Therefore, the owner-architect was justified in rejecting work and in terminating the contract. Therefore since the architect-owner ultimately spent *18,002 above bid price to complete the house, the arbitrators must have deviated from one or more of the above-mentioned unambiguous provisions in the contract in order to award in favor of the contractor.

This reasoning would be sound if the arbitrators had made more than a bare monetary award; but the arbitrators are not required to give more than the bare award. (Cohen v. Meyers (1969), 115 Ill. App. 2d 286, 253 N.E.2d 144.) Further, “The awarding of a gross sum of money in such a case will be presumed to be a complete adjustment of all matters of difference embraced in the submission.” (Emphasis added.) (Cohen, 115 Ill. App. 2d 286, 294, 253 N.E.2d 144, 148.) However, I cannot find any individual point of contention in which it could not be argued that the arbitrators made a particular finding of fact in favor of the contractor. For each contention the owner-architect made at the hearing, either the contractor or one of the arbitrators (who were admitted construction experts) was able to put forth some counterargument, excuse, justification or other reply.

This rendered each question no more than a question of fact which could have been decided in favor of either party. In many cases the arbitrators were faced with conflicting testimony, leaving a question of credibility of the parties. For example, the architect-owner claimed that certain holes in the foundation were in improper locations; the contractor claimed the owner had helped locate the holes. Concerning the availability of roof decking of the type specified, the owner-architect contended it was available while the contractor claimed it was not. When the owner-architect stated without rebuttal that the framing did not conform to specifications, arbitrator Corrubia stated that he did not feel that it was necessarily wrong if it were done as stated; Corrubia seemed to imply that he felt the difference was minor. In other places the arbitrators stated that they thought one defect or another would have been cured before the contractor completed the job. There was not even a clear statement as to whether the arbitrators found the termination of the contract to have been justified and proper. Since the arbitrators gave only a money award without findings of fact, no specific deviation from an unambiguous provision of the contract can be found in the award itself. It may have been possible to show from the transcript of the arbitration hearings that the arbitrators disregarded unambiguous portions of the contract; however, the statements contained therein are not conclusive, and arguably may not show the state of mind of the arbitrators when the award was later made. Such an offer of proof should have been made in the trial court. It apparently was made, and upon this question of fact the trial court has found adversely to the owner-architect. The court cannot be said to have found contrarily to the manifest weight of the evidence on this point.

The question is whether there is enough in the record to support the conclusion reached in arbitration. The conclusion reached is a plausible one, though not the only one possible. It was the arbitrators rather than the courts who heard the testimony, saw the exhibits, and were able to weigh it firsthand. These arbitrators were possessed of experience and expertise in the construction industry which also entitled their findings to some deference. We cannot vacate an award which the arbitrators could justifiably have reached. It must also be remembered that the parties themselves selected the arbitration process rather than the courts as a mechanism to resolve any disputes; they should be left to it as much as possible, and appeal from that process is correspondingly restricted. The losing party in this arbitration is the very party which proposed the arbitration clause, with any award rendered to be “final.”

I would affirm the judgment of the trial court.

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