1 Mo.App. 453 (Mo.App. 1876), Mitchell v. Curran

Citation:1 Mo.App. 453
Opinion Judge:BAKEWELL, J.
Party Name:J. W. MITCHELL et al., Respondents, v. PETER CURRAN et al., Appellants.
Attorney:Slayback & Haeussler, for appellants, Russell & Smith, for respondents,
Case Date:March 21, 1876
Court:Court of Appeals of Missouri
 
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Page 453

1 Mo.App. 453 (Mo.App. 1876)

J. W. MITCHELL et al., Respondents,

v.

PETER CURRAN et al., Appellants.

Court of Appeals of Missouri, St. Louis.

March 21, 1876

1. An award of arbitrators will not be set aside merely because it is against the law and the evidence.

2. The fact that the verdict is totally unsupported by evidence is not, of itself, evidence of partiality which will warrant the setting aside an award of arbitrators.

3. It is not error for the trial court to look into the question as to whether there is evidence to support the award of arbitrators.

APPEAL from St. Louis Circuit Court.

Affirmed.

Slayback & Haeussler, for appellants, cited: Bluementhal v. Torine, 40 Mo. 159; Fraugmans v. Hersey, 43 Mo. 122; Easley v. Elliott, 43 Mo. 289; Price v. Evans, 43 Mo. 397; Allen's Admr. v. Richmond, Col., 41 Mo. 307; Penn v. Lewis, 12 Mo. 161, 162; McKeon v. Citizens' R. R. Co., 42 Mo. 84; Schmeidling v. Ewing, 57 Mo. 78, 83; Doering v. Saum, 56 Mo. 479; Wag. Stat., ch. 8, sec. 23; Hyeronimus v. Allison, 52 Mo. 102; Squires v. Anderson, 54 Mo. 197; Tucker v. Allen, 47 Mo. 490; Shores v. Bowen, 44 Mo. 397; Morse on Arb. 115, 116, 126; Field v. Oliver, 43 Mo. 200; Shelbina Hotel Assn. v. Parker, 58 Mo. 327; Russ. on Arb. 61 Law Lib. 175, 176, 177; Hall v. Hinds, 2 Man. & G. 851; Payne v. Bailey, 7 Moore 147; Boutilier v. Thick, 1 Dow. & Ry. 366; Morgan v. Mather, 2 Ves. jr. 15; 1 Salk. 71; Wat. on Arb. 161; Bridgman v. Bridgman, 23 Mo. 272; Vallé v. North Mo. R. Co., 37 Mo. 445; Knowlton v. Mickles, 29 Barb. 465; Walker v. Frobisher, 6 Ves. jr. 70; Russ. on Arb. 186, 187; Passmore v. Petit et al., 4 Dall. 272; Field v. Oliver, 47 Mo. 200.

Russell & Smith, for respondents, cited: Wag. Stat. 145, sec. 11; Bennett v. Russell, 34 Mo. 527; Vallé v. North Mo. R. Co., 37 Mo. 445; Moo. on Arb. 293; Burchell v. Marsh et al., 17 How. 344; Morris' C. Co. v. Salt Co., 58 N.Y. 667; Shoyer v. Barclay, 24 Mo. 346; Brown v. Leavitt, 26 Mo. 251.

OPINION

BAKEWELL, J.

It appears from the record in this case that the plaintiffs and defendants were members of the Union Merchants' Exchange, of the city of St. Louis; that a controversy arose between them in regard to the delivery of some meat which was, by agreement, to be delivered by defendants to plaintiffs, and which defendants, it was said, had not delivered according to contract. The parties entered into an agreement according to the provisions of the statute in regard to arbitration, and thereby submitted the matter in controversy between them to the committee of arbitration of the Union Merchants' Exchange, with right of appeal, according to the rules of said Union Merchants' Exchange, to the committee of appeals. The committee of arbitration found for defendants. The committee of appeals set this award aside, and remanded the cause for a new trial. The committee of arbitration again found for defendants, whereupon, on appeal, the committee of appeals found for plaintiffs in the sum of $600 and the costs of arbitration. It appears, from the 6th rule of the regulations of the Union Merchants' Exchange, that the committee of appeals, on hearing an appeal, takes no new evidence, but merely passes upon the evidence, as preserved in writing, taken on the trial before the committee of arbitrators.

The last award of the committee of appeals was made on March 11, 1874. On May 4, 1874, plaintiffs notified defendants that they would, on May 20th, apply to the Circuit Court for a confirmation of the award, and for judgment. On May 23d, plaintiffs filed their motion to confirm the award, and, on the same day, defendants filed their cross-motion to vacate the same, setting forth the grounds named in the statute, and also filed a paper, verified by affidavits, assigning reasons in support of this motion. The two motions were heard together, and the Circuit Court overruled the motion to vacate, and confirmed the award, and entered judgment thereon for plaintiffs. A motion for a new trial being overruled, an appeal was taken to the general term, where, the action of the court at special term being affirmed, the cause is brought to this court by appeal.

A careful examination of the evidence, as preserved in the record, satisfies us that there is no evidence to support the finding of the committee of appeals, and that the committee of arbitration were bound, upon the evidence as preserved in the record, to find for defendants. Plaintiffs claimed $2,000, and, if entitled to anything, were entitled to $1,200, this being the lowest measure of damage shown by the evidence. But plaintiffs were really entitled to nothing, since it clearly and indisputably appears from the evidence that they refused to receive the meat when tendered according to contract, and refused it on the ground that a part of it had been sprinkled with salt, which sprinkling was done at the express request of their own agent. As the evidence before the committee of appeals was the same written evidence brought before us by this record, it is manifest that they have brought in a verdict without regard to the evidence before them. The question is, can this court interfere? Clearly we cannot, unless it was error in the Circuit Court to refuse to look into the question whether or not there was any evidence to support the finding of the committee of appeals of the Merchants' Exchange, the final arbitrators chosen by the parties themselves.

There are five grounds, and only five, upon which the courts will set aside an award. These are:

1. The insufficiency of the award. That means that it is not certain, final, or mutual; that it does not embrace all matters submitted to the arbitrator; or, that it...

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