Cochran v. Bartle
| Decision Date | 21 March 1887 |
| Citation | 3 S.W. 854,91 Mo. 636 |
| Parties | Cochran v. Bartle, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.
Affirmed.
Smith & Harrison for appellant.
(1) The submission in question in this case, having been in writing is within the statute concerning arbitrations, and section 329, Revised Statutes, which imposes a duty on the arbitrators, and not on the parties, and which, in plain terms, prohibits the former from proceeding without first qualifying under oath, was applicable to the case. It follows, from this, that, unless the statute was complied with, in the matter of the arbitrators' oath, either by performance of its requirements, or by the equivalent of such performance, the award is void. If that statute was violated so that the award could not be good de jure, then the award could have no binding force de facto, but was, and is, a nullity. Toler v. Hayden, 18 Mo. 399; Bridgman v. Bridgman, 23 Mo. 272; Hamlin v. Duke, 28 Mo. 166; Walt v. Huse, 38 Mo. 210; Fassett v. Fassett, 41 Mo. 516; Wolf v. Hyatt, 76 Mo. 156; Williams v. Perkins, 83 Mo. 379, 384; Hepburn v. Jones, 4 Col. 98. (2) The neglect of the arbitrators to be sworn was not a mere irregularity, but was such a fatal omission as to render the award invalid. The taking of the oath is jurisdictional in character, and it should appear on the face of the proceedings before the arbitrators, either that they took and subscribed the oath and filed the same with their award, or that the parties expressly entered into some agreement to be filed with the award, as a substitute and equivalent for the statutory oath. Since the amendment, in 1879, of section 329, Revised Statutes, requiring the oath to be filed with the award, it is not competent for parties to waive the oath by implication. Toler v. Hayden, 18 Mo. 399; Frisell v. Fickes, 27 Mo. 557; Walt v. Huse, 38 Mo. 210, 213; Fassett v. Fassett, 41 Mo. 516; Inslee v. Flagg, 26 N. J. L. [2 Dutch.] 368, 371; People v. Connor, 46 Barb. 333; Hepburn v. Jones, 4 Col. 98; Lile v. Barnett, 2 Bibb. 166; Overton v. Alpha, 13 La. An. 558; In re Villmar, 10 Daly, 15, and cas. cit.; French v. Mosely, 1 Litt. [Ky.] 248; Combs v. Little, 3 Green Ch. 310; Sharkey v. Wood, 5 Rob. [La.] 326; Harrold v. Lewis, 3 Martin [La.] 317; Bowen v. Lanning, 1 Penning. [N. J.] 102, s. p. 139; Reeves v. Goff, Ibid, 105, s. p. 143; Parker v. Crammer, Ibid, 197, s. p. 271; Littles v. Silverthorne, Ibid, 501, s. p. 680; Jackson v. Steele, Sneed [Ky.] 21; Vaughan v. Scade, 30 Mo. 600, 604; Brown v. Railroad, 37 Mo. 298. (3) Whether this be regarded as a suit at law or in equity, it must be considered, for the purposes of this appeal, that defendant did not, at the hearing before the arbitrators, know of the omission of the arbitrators to be sworn. If it be held that the case is one at law, then defendant's instructions on the question of knowledge should have been given by the court below. If the suit is in equity, this court will look into the evidence, where it will appear, beyond a doubt, that defendant had no knowledge whatever on the subject, and that nothing occurred to put him on inquiry. He did not even know that the law required the arbitrators to be sworn, and the question was never discussed, at the hearing or elsewhere, in defendant's presence, until after the award. Under these circumstances, there was no waiver of the oath on the part of defendant. His proceeding before the arbitrators without objection, while ignorant of the facts, is not evidence of waiver. Toler v. Hayden, 18 Mo. 399; Frisell v. Fickes, 27 Mo. 557; Walt v. Huse, 38 Mo. 210, 213; Fassett v. Fassett, 41 Mo. 516; Inslee v. Flagg, 26 N. J. L. [2 Dutch.] 368, 371; People v. Connor, 46 Barb. 333; Otis v. Northrop, 2 Miles [Pa.] 350; Hepburn v. Jones, 4 Col. 98; Lile v. Barnett, 2 Bibb. 166; French v. Mosely, 1 Litt. [Ky.] 248; Overton v. Alpha, 13 La. An. 558; Harrold v. Lewis, 3 Martin [La.] 317; Sharkey v. Wood, 5 Rob. [La.] 326; Combs v. Little, 3 Green Ch. 310; Jackson v. Steele, Sneed [Ky.] 21; Hoxie v. Insurance Co., 32 Conn. 21, 40; Pomeroy's Eq. Jur., sec. 809; Bispham's Equity, secs. 258, 288; Bigelow on Estoppel, 568; Bales v. Perry, 51 Mo. 449, 453; Smith v. Hutchinson, 61 Mo. 83; Fox v. Hazelton, 10 Pick. 275; Scott v. Moore, 41 Vt. 205, 210, 211; Duckworth v. Diggles, 139 Mass. 51; Merrill v. City of St. Louis, 83 Mo. 244, 251; Hermann on Estoppel, sec. 825; Dyas v. Hanson, 14 Mo.App. 363, 375, and cases cited; Goodger v. Finn, 10 Mo.App. 226. (4) The partnership agreement between plaintiff and defendant fixed the proportion of profits which each was to receive, but was wholly silent as to losses. From this, it is implied, both in law and equity, that he who had the chance of gain should incur the hazard of loss. The communion of profits implied a communion of loss, and when the arbitrators charged the whole loss of the years in which the firm made no profits upon defendant, they acted in violation of what, both in law and in equity, is presumed to have been the understanding of the parties. Under these circumstances, the court will not enforce the award. Affirmative relief will not be granted upon a principle which is recognized neither at law nor in equity, and which, both in law and in equity, is pronounced unjust and inequitable. The award is upon a point "universally known and clear," and is "plainly and grossly against the law." It is, therefore, bad. Morse on Arbitration, 314; Cleary v. Coor, 1 Hayward [N. C.] 225; Hartshorne, Adm'r, v. Cuttrell, 2 N.J.Eq. 297, and cas. cit.; Herrick v. Blair, 1 John. Ch. 101, and cas. cit.; Whitehill v. Shickle, 43 Mo. 537. (5) Under the evidence in this cause, there was no waiver of the duty of the arbitrators to swear the witnesses. When defendant asked to have the witnesses sworn, it was the duty of the arbitrators to enforce the statute in that regard. Their reply to him was equivalent to a refusal. (6) The award is not final.
Broadhead & Haeussler for respondent.
(1) Parties to an arbitration may waive the taking of the oath by arbitrators, or the swearing of the witnesses therein, and such waiver may be either express, or may be inferred from the conduct of the parties, or the surrounding circumstances. Morse on Arb. and Award, 171, and cases cited; Durham v. Security Insurance Co., 3 Watts, 126; Maynard v. Frederick, 7 Cush. 247; Wary v. Heinrich, 25 N.H. 381; Howard v. Sexton, 1 Denio [N. Y.] 440; Tucker v. Allen, 47 Mo. 488; Newcomb v. Wood, 97 U.S. 581; Valle v. Railroad, 37 Mo. 445, 450; Browning v. Wheeler, 24 Wend. [N. Y.] 250; Nason v. Luddington, 56 How. Pr. 172; Grafton Co. v. McCully, 7 Mo.App. 580; Edwards v. Gormhart, 56 Mo. 86; Hemghigh v. Krannar, 50 Pa. St. 530; Sweeny v. Vaudry, 2 Mo.App. 352; Neely v. Buford, 65 Mo. 448; Phillip v. Couch, 66 Mo. 219; Bray's Adm'r v. Seligman, Adm'r, 75 Mo. 31; Grant v. Holmes, 75 Mo. 109; Carter v. Prior, 78 Mo. 222; Grayson v. Weddle, 80 Mo. 39; Merrill v. St. Louis, 83 Mo. 244, 251; Young v. Powell, 87 Mo. 128. (2) As regards statutory provisions relating to the formalities of legal procedure, knowledge of their existence by the parties thereto is not a prerequisite to a waiver thereof. The oath of arbitrators and witnesses may be waived, and it is immaterial that the parties did not know that the statute prescribed an oath. Grafton Quarry Co. v. McCully, 7 Mo.App. 580; Neely v. Buford, 65 Mo. 448. (3) The question of waiver where the facts are disputed is one of fact, and the finding of the triers of the fact will not be disturbed when there is evidence to support it. (4) The award was within the terms of the submission and covered all the matters presented to the arbitrators by the parties. It was sufficiently certain, definite, and final. All that is necessary, in order to arrive at the amount due plaintiff, under the findings of the arbitrators, was to eliminate from the accounts on the books the items of "losses" which had been improperly charged to plaintiff therein, and strike a balance, or merely make an arithmetical calculation. Certainty, to a common intent, is all that is necessary in an award, and it is sufficient if the arbitrators consider and determine those matters only which are presented to them. 6 Wait's Actions, 545; Purdy v. Delevan, 1 Cairnes Rep. 314; Locke v. Filley, 14 Hun [N. Y.] 139; Backus v. Fobes, 20 N.Y. 204; Atchison v. Cargey, 9 Moore C. P. 381; Owen v. Boerum, 23 Barb. [N. Y.] 196; Carsley v. Lindsay, 14 Cal. 390; Akely v. Akely, 16 Vt. 456; Johnson v. Ambler, 14 Johns. 96; Rush v. Davis, 34 Mich. 190; Waite v. Barry, 12 Wend. 380; Perkins v. Giles, 50 N.Y. 228; Wright v. Smith, 19 Vt. 110; Burrows v. Guthrie, 61 Ill. 70; Hays v. Miller, 12 Ind. 187; Benson v. White, 101 Mass. 48; Fudicar v. Insurance Co., 62 N.Y. 392; Pearce v. McIntyre, 29 Mo. 425. (5) The objections made by defendant to the conduct of the arbitrators or the character of the award should have been raised by motion to vacate, under section 335, Revised Statutes, 1879. Tucker v. Allen, 47 Mo. 488.
Plaintiff and defendant, who were partners in business, upon the dissolution of the partnership, disagreeing as to how the partnership should be settled as between themselves, entered into the following agreement:
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