Cochran v. Bartle

• Decision Date: 21 March 1887
• Citation: 3 S.W. 854,91 Mo. 636
• Parties: COCHRAN v. BARTLE.
• Court: Missouri Supreme Court

3 S.W. 854

91 Mo. 636

COCHRAN v. BARTLE.

Supreme Court of Missouri.

March 21, 1887.

1. ARBITRATION AND AWARD — OATH — WAIVER.

If the parties to an arbitration waive the swearing of arbitrators and witnesses, the award cannot afterwards be assailed on the ground they were not sworn; and such waiver may be either express, or inferred from surrounding circumstances.

2. SAME — IGNORANCE OF LAW.

In case of such waiver, it is immaterial that the party making waiver did not know that the statute required an oath, it not appearing that his action would have been otherwise had he known of the statutory requirement.

3. SAME — AWARD — PARTNERSHIP.

An award need not state in words and figures the precise amount to be paid. It is sufficient if nothing remains to be done in order to render it certain and final but mere mathematical calculations. So, where the accounts of partners were referred to arbitrators to determine the amount due each partner, and to settle whether plaintiff, one of the partners, should be charged with any part of the losses of the firm, and the award made by the arbitrators does not specify any sum to be paid, but decides merely that plaintiff is not to be charged with any part of the losses, and that, with that exception, the accounts are to stand as they stood on the partnership books at the time of the award, held, that the award was sufficiently definite and enforceable.

4. SAME — PRESUMPTION.

An award will not be set aside for any mistake of law or fact not appearing on its face; so, while a communion of profits between partners implies a communion of losses, yet, as partners may agree between themselves that one of them shall not be charged with losses, it will be presumed that the above award, relieving the plaintiff from liability for losses, was made upon the evidence of such an agreement.

Appeal from St. Louis circuit court.

Broadhead & Haeussler, for respondent. Smith & Harrison, for appellant.

NORTON, C. J.

Plaintiff and defendant, who were partners in business, upon the dissolution of the partnership disagreed as to how the partnership should be settled as between themselves, entered into the following agreement:

"An agreement made this sixth day of June, A. D. 1883, by and between William G. Bartle and Frederick G. Cochran, both of the city of St. Louis and state of Missouri, witnesseth that whereas, a controversy exists between said parties in relation to the adjustment and settlement of the accounts between them as partners in business under the firm name of Bartle & Cochran, and, desiring to avoid litigation, said parties respectively hereby mutually agree to submit said controversy, and all matters between them growing out of said partnership business, to the decision of Archibald N. Craig, E. O. Stanard, and Michael McEnnis, all business men residing in the city of St. Louis, aforesaid, whose decision shall be binding upon the respective parties hereto, and judgment of the circuit court of the city of St. Louis may be rendered upon the award upon the subject-matter designated in this submission, made by said arbitrators in writing. Executed in duplicate.

                       [Signed]                              "FREDERICK G. COCHRAN
                                                             "WILLIAM G. BARTLE."
                

In pursuance of this agreement, all the arbitrators met, and, as the result of their investigation, two of them made the following award:

"The undersigned, arbitrators in the question at issue between William G. Bartle and Frederick G. Cochran, find, in the absence of any written agreement between the parties aforesaid during the first four years' business, and the vague expression in the written agreement signed by both of the aforesaid parties for the last year's business, ending November 1, 1882, to-wit: `The interest of F. G. Cochran is changed from one-eighth of the profits to one-fourth in the future, as heretofore.' As there is nothing said in this agreement as to the liability of the said F. G. Cochran in case of loss, and as the statements made by the said W. G. Bartle and F. G. Cochran do not agree with regard to the question of loss, we therefore find that we must either give up the case with regard to facts, or decide equitably from the best judgment we can bring to bear. With this in view we decide as follows, viz.: (1) F. G Cochran is entitled to one-eighth of the profits in the years that profits were made during the first four years, and one-fourth of the profits of the year ending November, 1882. (2) F. G. Cochran is to neither receive any money for his services, nor pay any of the losses in the years that showed no profits. (3) The accounts on the books of Bartle & Cochran are to stand as they are, with the above exceptions.

                       [Signed]                              "MICHAEL McENNIS
                                                             "E. O. STANARD
                 "September 10, 1883
                

"Michael McEnnis and E. O. Stanard acknowledged to me, in the presence of each other, that these were their respective signatures, and asked me to witness same.

                       [Signed]                              "GEORGE H. MORGAN."
                

This suit is brought to enforce the above award.

The defendant in his answer resists its enforcement on the ground that neither the arbitrators nor witnesses were sworn, that the award is not specific enough to be enforced, and did not embrace all matters referred for arbitrament.

On a trial had before the court sitting as a jury, judgment was rendered for the plaintiff, from which the defendant has appealed, and assigns, among other grounds of error, the action of the court in giving and refusing instructions. The court tried the case upon the theory, as shown by the instructions given, that, if the parties to the arbitration waived the swearing of the arbitrators and witnesses, the award could not be assailed on the ground that they were not sworn. If this theory is correct, and if there is evidence in the case tending to show such waiver, the court did not err in giving the instructions complained of. That the theory adopted by the trial court was the correct one is established by the case of Tucker v. Allen, 47 Mo. 491, where it is held that notwithstanding the statute requiring arbitrators to be sworn, that the parties might waive the taking of the oath, and that the failure of the arbitrators...