Ames Canning Co. v. Dexter Seed Co.
| Decision Date | 17 October 1922 |
| Docket Number | 34710 |
| Citation | 190 N.W. 167,195 Iowa 1285 |
| Parties | AMES CANNING COMPANY, Appellee, v. DEXTER SEED COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 22, 1923.
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
ACTION upon an award by arbitrators. Judgment upon a directed verdict. Defendants appeal.--Modified and affirmed.
Modified and affirmed.
John Y Luke and J. L. Gillespie, for appellants.
Miller Kelly, Shuttleworth & Seeburger and Frederic M. Miller, for appellee.
I.
This is an action upon an award by arbitrators. The agreement for submission was in writing, and sought to comply with Chapter 14, Title XXI, of the Code, relating to the submission of controversies to arbitration. It provided that judgment be entered on the award in the district court of Polk County. Objections were filed by the appellants in this action to the award and to the entry of judgment thereon by the district court of Polk County, upon the ground, among others, that the written agreement was defectively acknowledged; and, upon appeal, the judgment was reversed upon that ground. In re Ames-Farmer Canning Co., 190 Iowa 1259, 179 N.W. 105. Thereupon, plaintiff and appellee herein commenced an action upon the award, demanding judgment for the amount found therein to be due the plaintiff from the Dexter Seed Company, J. Le Roy Farmer, and S. T. Farmer, the appellants. A trial below resulted in a directed verdict for plaintiffs, and all the defendants appeal.
The validity of the award and the right of plaintiff to maintain an action thereon is challenged by appellants upon the following principal grounds: (a) That the parties intended and the written agreement contemplated only a statutory award, and that, as appellee elected to proceed in accordance therewith, and to have judgment entered thereon against appellants, no action can be maintained upon the award; (b) that, as the parties intended, and the contract contemplates, only a submission to a statutory arbitration, no action can be maintained thereon as a common-law award; (c) that there were bias and partiality on the part of the two arbitrators signing the award; (d) that S. T. Farmer, one of the arbitrators, resigned, and all the appellants revoked the agreement for submission before the alleged award was made, and that because thereof, the award made by the two remaining arbitrators is without any binding force, and wholly void; (e) that the arbitrators refused to hear evidence, or to examine witnesses on behalf of appellants; (f) that George Kelley, one of the arbitrators, was guilty of misconduct; and (g) that there were fraud and mistake on the part of arbitrators.
The answer of appellee to the foregoing propositions is: First, a denial of bias, partiality, fraud, or misconduct on the part of the arbitrators, and of their alleged refusal to hear evidence or examine witnesses on behalf of appellants; second, that appellants, having accepted the fruits of the award, and having refused to surrender the same or to restore the status quo, are estopped from asserting the voidability or invalidity of the award, and from taking advantage of the resignation of S. T. Farmer as an arbitrator, or of the attempted revocation of the agreement.
We will consider appellants' propositions in the order stated. The agreement for submission provided for the entry of judgment in the district court of Polk County, and both parties in terms waived the right of appeal. Section 4395 of the Code clearly authorizes the enforcement, by action thereon, of awards rendered without compliance with Chapter 14, Title XXI. This section is as follows:
"Awards by arbitrators who may have been chosen without complying with the provisions of this chapter shall nevertheless be valid and binding upon the parties thereto, as other contracts, and may be impeached only for fraud or mistake, but such award can only be enforced by an action."
It is, of course, not claimed by counsel for appellants that an action upon a common-law award may not be maintained under this statute. Their contention is that, where submission of a controversy to arbitration is attempted under a written agreement, properly executed and acknowledged, and designating a court to enter judgment thereon, the intention of the parties must control, and that, if the agreement is so defective that judgment cannot be entered on the award, the proceeding is at an end, and no action can be maintained for the enforcement of the award, as allowed by Section 4395. The statute specifically provides to the contrary. Older v. Quinn, 89 Iowa 445, 56 N.W. 660, is relied upon by appellants. Plaintiff in that case brought action upon a valid statutory award. The court held that it could not be maintained, for the reason that the parties, having made submission under the statute,--the proceedings in all respects conforming thereto,--were bound to pursue the remedy provided in such cases. Manifestly, the rule of that case does not come within the purview of Section 4395. The court in the Older case specifically reserved decision of the question under consideration, and, therefore, the Older case does not support appellants' contention. We shall not undertake to review our prior decisions upon this point, but they are in harmony with the statute which provides for the enforcement of awards by action, where there has been a failure to comply with Chapter 14, Title XXI, of the Code. King v. Hampton, 4 Greene 401; Conger v. Dean, 3 Iowa 463; Fink v. Fink, 8 Iowa 312; Foust v. Hastings, 66 Iowa 522, 24 N.W. 22; Thornton v. McCormick, 75 Iowa 285, 39 N.W. 502; Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 316, 157 N.W. 145, 154 N.W. 1037.
What is said above also disposes of appellants' second proposition. The doctrine of election of remedies is not applicable, for the reason already expressed, that the legislature by specific enactment has reserved the right to enforce an award which, although made in contemplation of the statute, has failed because of the failure of the parties to comply with the provisions thereof by action thereon.
II. After the arbitrators entered upon their duties, but before the award was reduced to writing and signed, S. T. Farmer, one of the arbitrators, served notice in writing upon the other two that he declined to proceed further with the arbitration; and each of appellants, in their own behalf, caused a separate notice to be served upon the remaining two arbitrators, protesting against their taking any action while appellants were without representation on the board, and declaring their purpose to refuse to abide or be bound by any award which they might make. S. T. Farmer refused, upon notice and request from the other arbitrators, to proceed further with the arbitration. Thereupon, Kelley and German placed their findings in the form of an award, and signed and swore to the same, and it was filed in the office of the clerk of the district court of Polk County.
These are the acts of the parties relied upon to establish the alleged revocation of the agreement. In the absence of any evidence to the contrary, we must assume that the agreement for arbitration was entered into by the parties in good faith, and for the purpose of conveniently and economically adjusting their differences. Agreements for the submission of controversies to arbitration, validly executed, are made irrevocable by Code Section 4390. The agreement in question provided that:
"Said award shall be signed by at least two of the said arbitrators, and that the decision of two of the three said arbitrators shall be binding upon all of the parties hereto, and that said award shall be filed in the office of the clerk of the district court of Polk County, Iowa, and that any judge thereof shall enter judgment thereon upon the application of any party hereto; and all of the parties do hereby agree that said award shall be a final one, from which no party hereto shall have any right of appeal to the Supreme Court of Iowa, and which right of appeal they each hereby waive."
So far as is disclosed by anything in the record, appellants, at the time of the resignation of S. T. Farmer as arbitrator, and of the service of notice upon the other two, treated the agreement as complying with the statute, and therefore irrevocable. This assumption is supported somewhat by the language of the notice referred to.
The right of a party to a mere naked agreement for submission of a controversy to arbitration, to revoke it at any time before decision has been reached or an award made, is recognized by the weight of authority. Harrison v. Hartford Fire Ins Co., 112 Iowa 77, 83 N.W. 820; Williams v. Branning Mfg. Co., 153 N.C. 7 (68 S.E. 902); Grosvenor v. Flint, 20 R.I. 21 (37 A. 304); Barnett v. Elwood Grain Co., 153 Mo.App. 458 (133 S.W. 856); Mason v. Bullock, 6 Ala.App. 141 (60 So. 432); Paulsen v. Manske, 126 Ill. 72 (18 N.E. 275). The courts in a few jurisdictions have held to a somewhat contrary doctrine. Berry v. Carter, 19 Kan. 135; McKenna v. Lyle, 155 Pa. 599 (26 A. 777); Frederick v. Margwarth, 221 Pa. 418 (70 A. 797); Zehner v. Lehigh Coal & N. Co., 187 Pa. 487 (41 A. 464); Guild v. Atchison, T. & S. F. R. Co., 57 Kan. 70 (45 P. 82). And some courts have gone so far as to hold that either party may revoke the contract, even though they have stipulated therein that it shall be irrevocable (People v. Nash, 111 N.Y. 310, 18 N.E. 630 ; Sartwell v. Sowles, 72 Vt. 270, 48 A. 11; Finucane Co. v. Board, 190 N.Y. 76 ; Jones v. Harris, 59 Miss. 214), and although based upon a valid consideration. Finucane Co. v. Board, supra; Paulsen v. Manske, supra. The...
To continue reading
Request your trial