Callaway v. Albin

• Decision Date: 07 May 1924
• Docket Number: (No. 529-4003.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 372
• Parties: CALLAWAY v. ALBIN.
• Court: Texas Supreme Court

261 S.W. 372

CALLAWAY v. ALBIN.

(No. 529-4003.)^*

Commission of Appeals of Texas, Section A.

May 7, 1924.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by C. M. Albin against Oscar Callaway. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals,

with certified questions to the Supreme Court. Questions answered.

Callaway & Callaway, of Comanche, for appellant.

Chandler & Pannill, of Stephenville, R. F. Holloway, of Comanche, and Robt. R. Holloway, of Cisco, for appellee.

CHAPMAN, J.

On or about October 8, 1919, C. M. Albin sold to Oscar Callaway a flock of sheep, and accepted in part payment therefor 30 cows at $75 per head. The sheep were delivered to Callaway, and a delivery of cows was made by Callaway to Albin, in which delivery Albin claimed there were 29 head and Callaway claimed there were 30 head, and later Albin returned to Callaway's place and got another cow. About October 20, 1920, there was a controversy between Albin and Callaway as to whether Callaway should pay to Albin $750 for 100 lambs, which had died soon after they were sold by Albin to Callaway, and also whether Albin had received 30 or 31 cows from Callaway, and they agreed to settle their differences by arbitration, and about said date the following agreement for arbitration was drawn up:

"We, the undersigned, agree to submit for arbitration of whether or not Oscar Callaway shall pay to C. M. Albin seven hundred and fifty ($750) dollars for 100 lambs sold to Callaway by Albin at seven and 50/100 ($7.50) dollars a head, which immediately thereafter died from the effects of sore mouth and worms in their mouths, which they had at the time they were delivered to the said Callaway.

"And further whether or not the said Callaway shall pay the said Albin seventy-five ($75) dollars for a white-faced cow, which the said Callaway claims was delivered to the said Albin, and which the said Albin claims he did not get along with a bunch of cows sold and delivered to the said Albin by the said Callaway.

"Said Albin hereby agrees to return to Callaway farm a cow and calf that he drove off from the farm in January past, and to have suit filed by Callaway in the justice court dismissed at the cost of defendant, Albin.

"The parties hereto agree to comply without further question with the decision of the majority of the arbitrators, Geo. L. Sullivan, J. W. McCollum, and a third party they may select.

                                [Signed] C. M. Albin
                                       "Oscar Callaway."
                

There is some question as to when the agreement was signed by the parties. The Court of Civil Appeals in their certificate state that the testimony of Albin shows that the agreement was signed on the date that the arbitrators met. The arbitrators mentioned in the agreement met December 16, 1920, and plaintiff, Albin, pleaded that before the arbitrators began their deliberations he stated that he could not go to trial on the article wherein he was to return the cow and calf to the Callaway farm, for the reason that he had sold the cow, but, in the event the said cow and calf were awarded to the said Callaway by the arbitrators, he would pay to the said Callaway $75 for same, and that said Callaway agreed to said condition. He further pleaded that it was further agreed at this time that the cost of suit in justice court should be paid by the party against whom judgment was rendered for the said cow in question. He further pleaded that he asked that the written arbitration agreement be so changed as to cover and express the changes agreed upon, but that defendant said it was not necessary, but that defendant did agree, verbally and orally, to said changes. The arbitrators, after deliberation, made the following award:

                               "Comanche, Dec. 16, 1920
                

"C. M. Albin,

"Oscar Callaway,

"Sirs: In reference to the matter submitted to us in regard to the sheep and cattle deal, a majority of the arbitrators decided that a proper settlement would be that Albin should keep the cow that he got, that the suit in the justice court be dismissed, and that Callaway should pay Albin the sum of ($750) seven hundred and fifty dollars.

                                         `J. W. McCollum
                                         "J. F. Grissom
                                         "Geo. L. Sullivan."
                

Defendant, Callaway, refused to be bound by the award, and plaintiff, Albin, brought suit to enforce the award, and recovered the $750 awarded him by the arbitrators. There was another count in plaintiff's petition, which it is not necessary to here mention.

Defendant, Callaway, by special exception alleged that the award made by the arbitrators did not conform to the written agreement of the parties, did not determine all the issues submitted, and was uncertain and indefinite, and therefore could not furnish a proper basis for a recovery. Another contention presented was that the parol modification of the written agreement could not be given effect, because proof of the same would be in violation of the terms of the written agreement. Defendant, Callaway, appealed from the district court of Comanche county to the Court of Civil Appeals of the Second District, and that court has certified to us the following questions:

"(1) Did the trial court err in the admission of proof of the parol modification of the arbitration agreement?

"(2) Was the award made by the arbitrators, read in the light of the pleadings and evidence, and findings of the jury, too indefinite and uncertain to support the judgment rendered in plaintiff's favor?"

In our opinion the substance of the written agreement of arbitration was not changed by the oral agreement made on the day of the arbitration. It will be seen that in the written agreement there were only two things for the arbitrators to pass upon: One was whether Callaway should pay Albin $750 for 100 lambs which had died, and the other was whether Callaway should pay Albin $75...