Black v. Woodruff

• Decision Date: 08 April 1915
• Docket Number: 710
• Citation: 69 So. 97,193 Ala. 327
• Parties: BLACK v. WOODRUFF.
• Court: Alabama Supreme Court

69 So. 97

193 Ala. 327

BLACK v. WOODRUFF.

No. 710

Supreme Court of Alabama

April 8, 1915

Rehearing Withdrawn June 15, 1915

Appeal from Chancery Court, St. Clair County; W.H. Simpson Chancellor.

Suit by W.W. Woodruff against H.H. Black. From a decree for plaintiff, defendant appeals. Reversed and remanded.

Burgin Jenkins & Brown, of Birmingham, for appellant.

John W Inzer and J.A. Embry, both of Ashville, and Goodhue &amp Brindley, of Gadsden, for appellee.

SAYRE J.

Woodruff filed the original bill in this cause, charging that a certain contract by which he became the purchaser of a tract of land had been imposed on him by the fraud of Black, and praying that the contract be rescinded, and an accounting had of payments, rents, etc. After Black had answered the bill denying circumstantially its averments of fraud, the parties entered into an agreement in writing for rescission and the execution of the papers necessary to accomplish that result, and, to state its further effect in a general way, for an arbitration which would determine what amount, if any, Black should pay to Woodruff for his reimbursement on account of payments made on the purchase price, improvements, taxes, etc., after deducting the reasonable value of the rents for the period during which Woodruff had held possession under his purchase, and some other items to be credited to Black. The agreement was entered into on December 31, 1912. For the purpose of putting one item of disagreement out of the way, it may be here noted that Woodruff agreed to keep the place during the year 1913 at a reasonable rental as the tenant of Black; but it was not submitted to the arbitrators to determine what a reasonable rental for the future term should be, nor was it contemplated that the rental for that term should figure in the award. It was further provided that the finding should be returned to the chancery court, and should become the decree of the court in the pending cause. But no order of court was obtained authorizing the submission to arbitrators, and for this reason there was no arbitration according to statute, and the court acquired no power to summarily translate the finding into a decree. Dudley v. Farris, 79 Ala. 187.

A paper purporting to be an award of the arbitrators was filed with the register, and Woodruff moved the court that it be entered as the court's decree in the pending cause; but the court, taking the view of the arbitration indicated above, denied the motion. Thereupon Woodruff filed his amended or supplemental bill setting up the agreement and the award as a common-law arbitration, and praying the court to put the agreement and the findings of the arbitrators into effect by its final decree in the cause. Black demurred to this supplemental bill, taking two grounds against it: (1) The matter was not proper for a supplemental bill, but should have been brought forward by an original bill; (2) the ground was well taken.

The submission to arbitration, containing an agreement that the award, unless performed by the parties within 30 days, should be made the decree of the court, though ineffectual as an agreement for arbitration under the sanction of the statute, did not defeat the pending bill. Henry v. Porter, 29 Ala. 619. One clear purpose of the agreement was that it should not defeat the bill. The purposes or agreements of parties cannot be permitted to divert the administration of justice from its orderly channels; but one proper office of a supplemental bill is to bring forward matter relating to the case made by the original bill, but arising subsequent to the filing of such bill, to show a new interest vested in an old party, or to show that what was an inchoate has become a perfect right. Barringer v. Burke, 21 Ala. 765; Bowie v. Minter, 2 Ala. 406; Walker v. Hallett, 1 Ala. 379; Fletcher, Eq.Pl. & Pr. §§ 825, 826. A supplemental bill was always in the nature of an amendment, and now under our rule facts occurring after the filing of a bill may be introduced by an amendment. Chancery Court Rule 45. Equity cannot by supplemental matter be injected into a bill that before had none. Scheerer v. Agee, 113 Ala. 383, 21 So. 81. But the supplemental bill in this cause proceeded upon precisely the same equity as the original bill, though to be proved in a different way, and was properly allowed as a continuation of the original bill. Perhaps the same result would have been attained on the principle of Durr v. Hanover Bank, 170 Ala. 260, 53 So. 1012.

We are not of opinion that the award was wholly lacking in obligation because of the failure to have an order of the court authorizing it. The effect and operation of the agreement must be determined by reference to the terms of the instrument and what the parties did under it. The arbitrators were to proceed after the manner of arbitrators under the statute, and they were to return their award into the chancery court, where it was to become the decree of that court. By the failure to procure the court's preliminary order the parties failed to arm the court with the power to establish the award summarily as the decree in the cause. But it was competent for the parties to agree that the arbitrators should proceed in the manner provided by statute, though they were to have no authority under the statute. By common consent laying their respective contentions before the arbitrators, in the absence of a preliminary order the inviting an award as to the matters in dispute, the only rational conclusion is that the parties intended to appeal to the general powers of the court for its enforcement, if necessary. There is nothing in the contract itself compelling a different interpretation, nor is there any reason why the contract should not by due process be enforced according to the construction placed upon it by the parties themselves. To enforce its specific performance is not to make a contract for the parties, but, on the contrary, is to bind them to the very agreement they made. This seems to be the reasoning of the court in the closely analogous case of Davis v. McConnell, 3 Stew. 492. See, also, Lamar v. Nicholson, 7 Port. 158. The submission to arbitration was a matter of contract within the competency of the parties, and such adjustment of controversies, whether they have or not assumed the form of pending suits, has always been favored by legislation and judicial decision in this state. Burns v. Hendrix, 54 Ala. 80. The policy of arbitration is imposed upon the Legislature by section 84 of the Constitution. The nature of the agreement here, in so far as it without more determined that a rescission should be had, was such as to require for its enforcement a remedy peculiar to the court of chancery, and the supplemental bill properly invoked that remedy to the end that the whole matter might be concluded by one decree. Kirksey v. Fike, 27 Ala. 383, 62 Am.Dec. 768; Jones v. Blalock, 31 Ala. 180.

But, on consideration of the facts to be now stated, we are of opinion that the arbitration should be held for naught, and that the chancery court committed error in decreeing the specific performance of the agreement and award set up by Woodruff in his supplemental bill. It is established by the undisputed evidence in this case that on the second day after the arbitrators heard the parties they prepared a statement of their conclusions in two separate papers as follows:

"Feb. the 4 ........... ward ........... 1913. We the arbitrators agreed that H.H. Black pay to W.W. Woodruff the sum of $3540.10 Dollar and pay half of the cost of the arbitration and pay his witnesses one $1.00 per day."

"Feb. the 4 ........... ward ........... 1913. We the arbitrators agreed that W.W. Woodruff pays to H.H. Black the sum of $1246.00 for rent and pay half of the cost of the arbitration and pay his witnesses one 1.00 per day."

There is some conflict in the testimony as to whether the arbitrators signed these papers, and we leave that circumstance undetermined. But we find in the record no reason for doubting that both papers were prepared as together expressing correctly the conclusion reached, nor any for supposing that together they were not intended to express the conclusion that Black was to pay to Woodruff only the difference between the two sums named in the different papers. The arbitrators have so deposed, and, notwithstanding what remains to be noted in this connection, we are impressed with the truthfulness and correctness of their testimony so far as concerns the main fact in controversy, though they may be mistaken in respect of some nonessential circumstances. Black also gave testimony tending to support the theory of mistake in the preparation of the award to which we shall presently come. His testimony is, and it does not appear to be seriously challenged, that he kept a memorandum of the items claimed by Woodruff on the hearing before the arbitrators, and that the sum of all such items was less by several hundred dollars than the sum of the amounts named in the two papers. Nevertheless, when the arbitrators, after giving notice to the parties, came to the time and place appointed for the preparation of the final statement of their findings, Black being absent and unrepresented, all of them being unaccustomed to business of that nature and of limited education, one of them unable to write his name, it was suggested that one of the attorneys for Woodruff should prepare the formal statement of award, and he undertook to do so. He prepared the paper that was later in the day filed by the arbitrators with the register in chancery as their award in the cause, the award of which Woodruff seeks specific performance in his supplemental bill. The paper so prepared declared that Black was indebted to Woodruff in...