Brown v. Durham
Decision Date | 07 February 1905 |
Citation | 85 S.W. 120,110 Mo.App. 424 |
Parties | BROWN and MOORE, Respondents, v. DURHAM, Appellant |
Court | Missouri Court of Appeals |
Appeal from Wayne Circuit Court.--Hon. Frank R. Dearing, Judge.
AFFIRMED.
Judgment affirmed.
S. R Durham for appellant.
(1) Mere errors of law, or incorrect conclusions as to facts, do not of themselves constitute sufficient grounds for setting aside the award. But there must be proven misconduct of the arbitrators which is calculated to prejudice the rights of the party complaining. There must be not merely an error of judgment, but an intention to do wrong. Bennet v Russell, 34 Mo. 524; Newman v. Labeaume, 9 Mo 30. An award will not be set aside or vacated on motion because illegal evidence was admitted or there was an error of judgment. Vaughn v. Graham, 11 Mo. 575; Bridgman v. Bridgman, 23 Mo. 272. An arbitrator is not a competent witness to impeach his own award. Ellison v. Weathers, 78 Mo. 115. And the affidavits of the arbitrators filed herein by Brown and Moore cannot be considered in so far as they attempt to impeach their finding. The rule is now well settled in this State that the courts will not receive the affidavits of jurymen to show mistakes or errors of the jurors in respect to the merits, or that they mistook the effect of their verdict, or intended something different. Watts v. Brain, Croke Eliz. 778; State ex rel. v. George Bros., ___ Mo. ___. They ought not to be permitted to declare with a view to affect their verdict an intent different from that expressed in their finding. (2) The arbitrators are sole judges of the testimony submitted to them within the powers delegated to them by the submission, and if it appear that they acted within the terms of the submission, their award cannot be attacked on the ground that its conclusions are unjust. Hinkle v. Harris, 34 App. 223; Mitchell v. Curran, 1 App. 453; Ledlie v. Gamble, 35 Mo.App. 355; Allen v. Hickam, 156 Mo. 49. (3) The arbitrators have the right to open a case, even after they have drawn up their award, as long as it is not delivered. Sweaney v. Vaudry, 2 Mo.App. 352; Byars v. Thompson, 12 Leigh (Va.) 550. (4) The power of an arbitrator is not terminated by the delivery to the parties of an informal statement of their conclusions. Bodge v. Hull, 59 Mo. 225.
James F. Green for respondents.
When once an award is made the arbitrators have no more authority to make a second one on the same subject, without the consent of parties, than they would have had to make an award without any submission. Doke v. James, 4 N.Y. 568; Aldrich v. Jessamine, 8 N.H. 516; 11 Am. & Eng. Enc. of Law (N. S.), 698; Vaughn v. Graham, 11 Mo. 368; Bridgman v. Bridgman, 23 Mo. 272; Valley v. Railroad, 37 Mo. 445; Mitchell v. Curran, 1 Mo.App. 453.
There being matters of difference between E. W. Moore, R. A. Brown and Alexander Dow, they, on March 31, 1903, entered into a written agreement to submit their differences to D. M. Clark, John Schiek and A. J. Durham, as arbitrators. The arbitrators qualified, set a time and place for the hearing, gave notice thereof to the parties, and on the day appointed both parties appeared before the arbitrators who, after hearing all the evidence, made the following award:
The arbitrators delivered the award to S. J. Hawkins, attorney for Brown and Moore. After this award was made and signed, but on the same day, the attorney for Dow filed before the arbitrators the following motion:
Without the case being resubmitted and without hearing any additional evidence, and in the absence of Moore and Brown and their attorney, the arbitrators reconsidered their finding and made the following other award:
To continue reading
Request your trial