Caldwell v. Brooks Elevator Co.

• Decision Date: 06 December 1901
• Citation: 88 N.W. 700,10 N.D. 575
• Court: North Dakota Supreme Court

88 N.W. 700

10 N.D. 575

JAMES CALDWELL v. THE BROOKS ELEVATOR COMPANY

Supreme Court of North Dakota

December 6, 1901

Appeal from District Court, Grand Forks County; Fisk, J.

Action by James Caldwell against the Brooks Elevator Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Affirmed.

Bosard & Bosard, for appellant.

The arbitrators were not sworn according to § 5983, Rev Codes, and therefore the award sued upon in this action is void and no judgment should have been entered upon it. Wilkins v. Van Winkle, 3 S.E. 761. The statute is mandatory and failure of the arbitrators to take the oath prescribed by this section is jurisdictional and the award rendered void and incapable of supporting a valid judgment. Combs v. Little, 3 Green, (N. J.) 310, 40 Am. Dec 207; Inslee v. Flagg, 2 Dutch, (N. J.) 368, 69 Am Dec. 580; Overton v. Alpha, 13 La.Ann. 558; Frizzell v. Fickes, 27 Mo. 557; Toler v. Hayden, 18 Mo. 399; Fassett v. Smith, 41 Mo. 516.

John P. Galbraith, for respondent.

Appellant appeared, participated in the arbitration, produced evidence before the arbitrators after it had heard the oath administered to them. The appellant is estopped from denying that the arbitrators were properly sworn. Kelsey v. Darrow, 22 Hun. 125; Greer v. Canfield, 56 N.W. 883. This is not a motion to affirm the award of the arbitrators, but an action on an award made by them. The award was good as a common law award, and even though the arbitrators were not sworn at all appellant would not be entitled to a reversal in this case. Burnside v. Whitney, 21 N.Y. 148; Browning v. Wheeler, 35 Am. Dec. 617; Howard v. Sexton, 4 N.Y. 157; Greer v. Canfield, 56 N.W. 883.

OPINION

MORGAN, J.

This is an action upon an award found by arbitrators duly appointed by the parties in writing. The complaint alleges, in substance, as follows: that the plaintiff and defendant, on February 28, 1898, entered into an agreement in writing, which said agreement was set out in the complaint at length, being the submission of the differences of the parties to arbitration. Such agreement or submission recited that differences and disputes had arisen between the plaintiff and the defendant as to business matters pending between them; that the plaintiff claimed that the defendant was indebted to him on account of services performed by him for the defendant, and the defendant claimed that the plaintiff was indebted to it on account of a breach of a certain contract entered into between them, wherein the plaintiff guarantied weights and grades of all wheat purchased by him as agent of said defendant; that such parties therein agreed to submit all such differences and disputes to three arbitrators, to be chosen as prescribed in such agreement; that such arbitrators should meet, and, after being sworn, should hear the allegations and evidence of the parties, and make an award thereon, which award should be filed in the office of the clerk of the district court of Grand Forks county, and judgment entered thereon. The complaint further alleges that such agreement or submission was duly acknowledged by said parties, and that three arbitrators were duly appointed by them as therein prescribed; that the arbitrators were duly sworn, and entered upon the discharge of their duties; that plaintiff and defendant appeared before such arbitrators, and presented their differences and disputes to them; that, after hearing such evidence, and considering the same, the arbitrators duly decided and awarded that the plaintiff should have and recover from the defendant the sum of $ 262; that such award was duly filed in the office of the clerk of the district court of Grand Forks county, and the parties notified of such award and filing. Judgment is demanded against the defendant for such sum of $ 262, with costs and disbursements. The answer denies that the arbitrators were duly sworn. It further alleges that there existed between said parties a contract, wherein the plaintiff guarantied the weights and grades of all the wheat bought by plaintiff as agent of the defendant at its elevator; that such contract was offered in evidence at the hearing before such arbitrators; that they refused to consider the same, or did not give to it its correct legal effect and interpretation. The trial court made findings of fact and conclusions of law favorable to plaintiff, and ordered judgment in his favor for the sum of $ 262. Defendant appeals from such judgment, and demands a trial de novo, and a review of all the evidence in this court.

The award was made on the 17th day of March, 1898, and filed in the office of the clerk of the district court of Grand Forks county immediately thereafter. From the time of the filing of the award in said clerk's office no action or proceeding in reference thereto was taken by either of the parties until this action was commenced in March, 1900. The plaintiff did not move, as he might have done, to have the award affirmed under section 5986, Rev. Codes, 1899; nor did the defendant move to vacate or modify the same as it might have done under sections 5987 or 5988, Id. The year during which such proceedings might have been taken was allowed to pass without anything being done by either party towards affirming or vacating the award. The defendant makes no claim against the validity of the award except as alleged in the answer, nor is any question raised as to the bringing or maintenance of the action in the present form. The defendant confines its attacks on the award to the contention that the arbitrators were not sworn, and that they did not give due effect to nor consider the contract of employment between the plaintiff and the defendant company. The facts in regard to the swearing of the arbitrators are that the arbitrators met for conference, and before proceeding with their duties the matter of being sworn was considered. A notary public was sent for, who appeared before the arbitrators, and then and there administered an oath to them by reading the same from the statute. Afterwards, and before the award was signed, the arbitrators concluded that the oath should have been reduced to writing. It was thereupon decided that the notary should write out an oath, which he did. This oath was then signed by the arbitrators, and attached to and made a part of the award as filed in the clerk's office. The written oath did not conform to the terms of the statute. The statute provides that the arbitrators must be sworn to make a "just award according to their understanding." Section 5983. As written out by the notary, the oath did not contain a statement that they would make a just award. The word "just" was omitted therefrom.

In this case we need not determine whether such an oath was fatally defective or not, or whether the defect in its terms was waived; as, under the view we have have taken of the evidence, the arbitrators were duly sworn by the notary before they commenced their deliberations. The facts in regard to swearing the arbitrators before they entered upon a performance of their duties are as follows, so far as material: The plaintiff testified: "I was present when the arbitrators were sworn. * * * Mr. Murphy went out after a law book, to see what was to be done,--how to do it. The arbitrators were sworn at that time, and went ahead and considered the matter." Mr. Murphy, one of the arbitrators, testified: "At the time the arbitrators met for conference they were sworn by Mr. Dennis. Question. You may state whether or not Mr. Dennis, who administered the oath, had in his hand the statute of the state of North Dakota. Answer. He did. I don't know to what part of the statute it was opened, but he turned to that part with reference to the oath, and read it from the statute. Exhibit A is the oath I signed. I think this...