Brodhead-garrett Co v. Davis Lumber Co

• Decision Date: 16 September 1924
• Docket Number: (C. C. No. 311.)
• Citation: 124 S.E. 600
• Court: West Virginia Supreme Court
• Parties: BRODHEAD-GARRETT CO. v. DAVIS LUMBER CO.

124 S.E. 600

BRODHEAD-GARRETT CO.

v.DAVIS LUMBER CO.

(C. C. No. 311.)

Supreme Court of Appeals of West Virginia.

Sept. 16, 1924.

(Syllabus by the Court.)

Suit by the Brodhead-Garrett Company against the Davis Lumber Company. Rule sustaining demurrer to the bill was certified for review. Affirmed.

Young & McWhorter, of Buckhannon, for defendant.

LIVELY, J. On demurrer to plaintiff's bill the trial court decided that the bill was insufficient, and has certified its decision for review.

A suit at law arising out of a purchase of a carload of chestnut lumber by Brodhead-Garrett Company from Davis Lumber Company in February, 1920, was pending in the circuit court of Upshur county, in which Davis Lumber Company was suing for the purchase price of the lumber sold. The gist of the defense was that the lumber was not the kind purchased under the contract of sale and purchase, and hence defendant was under no obligation to pay. Pending the litigation an agreement of submission of all matters involved to arbitrators was signed by the parties on October 27, 1921, in which W. Lee Jack was selected by Davis Lumber Company and B. W. Ackles by Brodhead-Garrett Company as arbitrators, and in which it was stipulated that their award should be entered as a judgment of the court. It was agreed that all the pleadings, papers, affidavits, and evidence taken and to be taken should be considered by the arbitrators in making their award. Evidence was taken before the arbitrators and reduced to writing; each party producing all the evidence it desired. On April 10, 1923, the arbitrators made and signed an award in writing finding in favor of the Davis Company and against Brodhead Company in the sum of $926.35, with interest from that date, and the costs of the arbitration, $222.65, stating that they had heard and carefully considered the evidence adduced. At August Rules 1923 the Brodhead Company filed its bill to set aside and cancel the award; demurrer thereto was sustained as above stated.

The bill charges in substance that at the taking of evidence before the arbitrators numerous questions of law were raised by the Brodhead Company and objections made to the introduction of evidence offered by Davis Company, which evidence was improper, immaterial, and irrelevant, and in order to protect its interest the Brodhead Company, by its attorney, prepared a written list pointing out such illegal evidence, and requested the arbitrators to state whether such evidence was considered in arriving at their award, but that they failed to respond to that request, and failed to state in their award whether they had considered the evidence objected to. The bill then details thesubject of the litigation, and gives a summary of the evidence taken before the arbitrators, and exhibits all of the papers and evidence before the arbitrators. The chief defense by Brodhead Company against paying the purchase price for the lumber was that Davis Company did not ship the grade of lumber purchased, and it was entitled to reimbursement for what it had paid as an advancement, and a judgment should be rendered in its favor. Davis Company claimed that the lumber was purchased by Lytle, agent for Brodhead Company, by oral agreement, on February 23, 1920, and confirmed by written order from Brodhead Company, dated February 25, 1920, and confirmed by Davis Company by letter of March 1, 1920, as the "cars of chestnut which your Mr. Lytle purchased from us on the 23d inst." These cars so sold were No. 2 common and sound wormy chestnut, according to the verbal sale. The Brodhead Company claimed that its order for "3 ears 4/4 sound wormy chestnut" at.$70 merged any oral purchase made by Lytle, and any evidence to contradict the written order was illegal and of no force. The cars shipped contained a mixture of No. 2 common chestnut with sound wormy chestnut. The bill charges that all evidence of Davis Company concerning the verbal sale made through Lytle was illegal and improper, and, if the arbitrators considered such evidence and gave it any weight, which they must have done judging from the award, then they made their award contrary to plaintiff's plain right, innocently and in good faith it might be, but contrary to plain law and justice.

The bill further charges that it developed in taking the evidence that one of the cars shipped to Brodhead Company was bought by Davis Company from Acme Company as No. 2 sound wormy chestnut, and that Arbitrator Jack and John W. Farnsworth then composed the Acme Lumber Company, and therefore W. Lee Jack could not be an impartial arbitrator, a fact which the plaintiff did not know at the time Jack was selected; and, after the evidence was taken which developed the fact that Davis Lumber Company had purchased from Acme Company some of the chestnut lumber Involved, it had no opportunity to interpose objection to Jack as an arbitrator, because no other meeting of the arbitrators was held, except when they met and made the award when plaintiff was not present and had no notice that such meeting would be had. The bill says that Ackles, the other arbitrator, was a brother-in-law of Farnsworth, partner with Jack in the Acme Company, a fact which it did not know? until the evidence Xvas (taken, and plaintiff had no opportunity to object to him As an arbitrator, for the same reason it did not object to Jack as above set out The bill charges that the award was considered and rendered in the city of Buckhannon at the office of counsel for Davis Company about 100 yards from the office of counsel for plaintiff, who had no notice of the meeting, although at his office, and who had no opportunity to be present, make objections of any character, or. file a brief. Also, that both arbitrators, for the reasons above assigned, were not impartial, and the award should be set aside because of partiality. Also, upon information and belief, that the arbitrators because of lack of time did not and could not read and consider all of the evidence when they met to make their award on April 10, 1923, having been in session for a short time only. The averments of the bill are set out at some length because their sufficiency is challenged.

It will be seen that there are three reasons charged as being sufficient to set aside the award: (1) That the arbitrators made a mistake of law in rendering their award; and must have considered illegal and improper evidence. (2) That the arbitrators were not free from partiality. (3) That the arbitrators were guilty of misconduct: (a) In refusing to say in their award whether they considered and gave any weight to the evidence to which plaintiff had interposed objection; and (b) in meeting at the office of counsel for defenda...