Anderson v. Miller

• Decision Date: 14 January 1896
• Parties: ANDERSON v. MILLER.
• Court: Alabama Supreme Court

19 So. 302

108 Ala. 171

ANDERSON v. MILLER.

Supreme Court of Alabama

January 14, 1896

Appeal from circuit court, Covington county; John R. Tyson, Judge.

Action of assumpsit by R. H. Miller against B. L. Anderson. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The count of the complaint upon which the cause was tried was as follows: "The plaintiff claims of the defendant the sum of two hundred and ninety-six and 82/100 dollars, due by award made by certain arbitrators, to wit, J. W. Frater, J I. Dixon, S. J. Foschee, on the 6th day of February, 1892, at Pensacola, Fla., on submission made to them by plaintiff and defendant on, to wit, the 6th day of February, 1892, which said submission referred to said arbitrators matters in dispute between said plaintiff and defendant. Plaintiff claims interest on said award." To this count the defendant pleaded as follows: "(1) The general issue. (2) No award. (3) Partiality and fraud of the arbitrators in making said award, to the prejudice of defendant. (4) A palpable mistake of fact, in computation, apparent upon the face of the award, which, if corrected, would show that plaintiff was indebted to the defendant in the sum of, to wit, $1,003.17, after allowing plaintiff all claims and offsets. (5) That said award is not complete and final. (6) That said award does not conform to the submission under which it was made. (7) That said award was not made and delivered in accordance with the terms of said submission. (8) That the plaintiff has not paid any portion of the amount claimed by Cullum, referred to in said award, and the said Cullum is still prosecuting his claim therefor." Issue was joined upon these pleas. The plaintiff was introduced as a witness in his own behalf, and testified that he and defendant made a written submission of certain matters to arbitration, and that the arbitrators made an award in writing thereon. An award was then handed to witness, and he then testified that he saw said arbitrators sign the same that they did so in his presence, in the city of Pensacola about the day the same bears date. The plaintiff's attorney then offered to introduce in evidence the writing purporting to be an award made by said arbitrators, and which is in words and figures as follows, to wit:

"Exhibit A.

"Pensacola Fla., Febry. 6th, 1892. Memoranda of arbitration by J. W Frater, J. I. Dixon, and S. J. Foschee, between B. L. Anderson and R. H. Miller:

We arbiters find from books, the cr. to R. H. Miller .............. $ 13,756 81

Other claims presented by R. H. Miller .............. $1,169 90

Of which we decline to allow bill of reclamation ....... 633 75

---------- 536 15

--------------

$14,292 96

We find from books to cr. B. L. Anderson ............ $9,751 74

Other claims presented by B. L. Anderson $2,390 67

We deduct from same for

services ..................... $255 00

We deduct from same lawyer's

bill ........................... 38 10

We deduct am't Cullum's bill to

be paid by both Anderson and

Miller if Cullum establish

same .......................... 150 00

------- $443 10

--------- $1,947 57

---------- $11,699 31

--------------

The two amounts aggregating and making cost of property ............ $25,992 27

One"half of same being .......................................... 12,996 13 1/2

Deduct am't paid in by B. L. Anderson ............................... 11,699 31

--------------

Leaving am't due R. H. Miller by B. L. Anderson ................. $1,296 82 1/2

balance for

1/2 int.

We find that at time of purchase of 2/3 interest by J. I. Dixon

and McGowin the total cost of property was ....................... $25,992 27

Of which R. H. Miller has paid in .................. $14,292 96

Of which B. L. Anderson has paid in ................. 11.699 31

---------- $25,992 27

"We find the 1/2 interest of each to be $12,996 1/2, leaving B. L. Anderson due R. H. Miller, on his 1/2 interest, $1,296.82 1/2. We further find that property, or, rather, a 2/3 interest, was sold to J. I. Dixon and McGowin on a basis value of $1,3800.00; R. H. Miller receiving in cash, and turning over to them, of indebtedness, $9,200.00, being in excess of am't due him of $1,000.00, and which should be placed to cr. of B. L. Anderson, and leaves the am't on final settlement, as adjudged by arbiters, due by B. L. Anderson to R. H. Miller, $296.82 1/2. J. W. Frater, J. I. Dixon, S. J. Foschee, Arbitrators.

"State of Florida, Escambia County: I hereby certify that the foregoing instrument, marked 'Exhibit A,' is the award and judgment rendered by J. W. Frater, J. I. Dixon, and S. J. Foschee, arbiters, on an arbitration submitted to us by B. L. Anderson and R. H. Miller, to settle and determine all accounts and differences between the said B. L. Anderson and R. H. Miller, submitted to us for arbitration. [Signed] J. W. Frater, One of the Arbiters."

This certificate was sworn to by J. W. Frater before the clerk of the circuit court of Escambia county, Fla. The defendant objected to the introduction in evidence of said writing upon the following grounds: "First, because there is a gross mistake of fact apparent upon the face of said writing, in this: that said arbitrators, in calculating the amount received by the plaintiff as the proceeds of sale of a two-thirds interest in said mill business, and in excess of the share and interest to which the plaintiff was entitled therein, the amount is fixed by them at one thousand dollars, when in truth and in fact, as shown by a calculation of the same according to the basis fixed by said arbitrators, it is shown that the plaintiff in fact received the sum of $2,300 in excess of the amount to which he was entitled; second, because said writing is not final and complete; and, third, that it is void for uncertainty." But the court overruled each ground of said objection, and permitted the said instrument to be introduced in evidence as the award of said arbitrators; and the defendant, by his attorneys, then and there excepted separately to the overruling of each of said grounds of objection, and to the action of the court in permitting said instrument to be read in evidence. The plaintiff then introduced in evidence the following agreement of submission, which is in words and figures as follows, to wit:

"State of Florida, Escambia County-Know all men by these presents, that whereas differences and controversies have for a long time existed, and are now existing and pending, between B. L. Anderson and R. H. Miller, that we, the said B. L. Anderson and R. H. Miller, do hereby agree to submit said differences to the arbitrament of John W. Frater, S. J. Foschee, and J. I. Dixon, or any two of them, to arbitrate, award, order, judge, or determine of and concerning all actions, suits, controversies, quarrels, claims, and demands, and every subject of difference at any time heretofore had, possessed, instituted, sued out, presented, made, begun, pending, existing, done, or suffered to be done, committed, or pending, by and between said parties. That said award shall be made in writing, under hands of said arbitrators, or any two of them, and a copy be delivered to each of us on or before the 15th day of February, A. D. 1892. That said award shall, by us and each of us, be well and faithfully kept and observed. In testimony whereof, we have set our hands and seals this 14th day of January, A. D. 1892. [Signed] B. L. Anderson. R. H. Miller."

The execution of this agreement was attested by two witnesses.

The plaintiff then further testified that, on the day the said award was made, one of the said arbitrators delivered the original award, above set out, to him (the plaintiff), and then and there gave to the defendant a copy thereof. He further testified that the amount awarded him by said arbitrators had not been paid.

The defendant was then introduced as a witness in his own behalf and testified as follows: That he did enter into the written agreement of submission of matters to arbitration, but that he was not informed that they had made a final determination or award of said matters. That he had never received any copy whatever of the said award, and knew nothing of the contents thereof. That, a few days (two or three) after the agreement to submit was made, he met one of said arbitrators in the city of Pensacola, and was then informed by him that they had decided about what they would do, and that they had found a certain sum to be due by defendant to plaintiff, and that they had rendered their award, but had not written out the copies; that each of the arbitrators had signed their names to a blank piece of paper, and given it to him (one of the arbitrators), with request to copy the original above their names. That said arbitrator told him what their finding was. Whereupon witness informed said arbitrator that a claim had been put in before them, by Miller, for about $500, which he claimed to have paid to Barney, Cavanagh & Long, on account of their said mill business, and that, if...