Cohn v. Wemme

• Citation: 47 Or. 146,81 P. 981
• Parties: COHN v. WEMME.
• Decision Date: 15 August 1905
• Court: Supreme Court of Oregon

81 P. 981

47 Or. 146

COHN v. WEMME.

Supreme Court of Oregon

August 15, 1905

Appeal from Circuit Court, Multnomah County; Alfred F. Sears, Judge.

Action by S. Morton Cohn against E. Henry Wemme. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by S. Morton Cohn against E. Henry Wemme to recover the amount of an award. The complaint states: That plaintiff is the owner of certain real property in Portland, which was occupied for a specified time by one Fred T. Merrill for himself and as agent for another, and by the Fred T. Merrill Cycle Company. That actions were instituted by the owner against such occupants to recover the possession of the demanded premises, and the defendant herein became surety on undertakings given in such actions. That on September 12 1904, Cohn secured possession of his real property, and, a dispute existing as to the sum due him for rent and as to the value of certain material left on the premises by Merrill they entered into a written contract to submit the controversy to arbitrators for determination, whereupon the defendant herein duly signed the following stipulation "Whereas, I, E.H. Wemme, one of the sureties named in the above articles of arbitration, am upon the bonds holding me as one of the sureties for the payment of any rents adjudged to be due S. Morton Cohn from said first party named therein and whereas I will under the agreement herein be absolved from such liability upon such bonds, I in consideration thereof hereby agree and pledge myself to pay said S. Morton Cohn within three days of the date of the award and in cash any amount that may be awarded to said S Morton Cohn under this agreement of arbitration." That arbitrators were duly appointed, who found there was due plaintiff on account of such rent, and awarded him. $1,700, no part of which sum has been paid. The answer denies the material averments of the complaint, and for a separate defense alleged that plaintiff, his agents and attorneys, falsely represented to this defendant that he and another person were liable upon undertakings for the payment of the rent due, whereas neither of them was surety therefor; and that, believing such false statements, and relying thereon, the defendant herein signed the agreement set out in the complaint. It is further alleged that the arbitrators so chosen refused to permit this defendant, or Merrill, or their attorney to be present during the hearing, thus denying them an opportunity to object to the presentation of improper evidence, much of which, so this defendant is informed and believes, was introduced, there by influencing the arbitrators to his damage. That this defendant had competent witnesses and material evidence that he desired to produce and submit, but the arbitrators would not permit him to do so, and made the alleged award prior to the time allowed for the introduction of evidence. A reply was filed, denying these allegations, and a trial was had at which the parties introduced their evidence and rested, whereupon the court, at plaintiff's request, instructed the jury to find for him on the ground that the new matter in the answer did not constitute a defense to the action, and, a verdict having been returned for plaintiff in the sum of $1,700, upon which defendant appeals.

S. C. Spencer, for appellant.

D. Solis Cohen, for respondent.

MOORE J. (after stating the facts).

It is contended by defendant's counsel that the denial of the arbitrators to receive material testimony offered by the parties renders their determination liable to be vacated that such refusal affords a valid defense to an action on the award, and, this being so, the court erred in directing a verdict for plaintiff. A text-writer, in discussing the consequence that may result from a denial of arbitrators to receive competent evicence, says: "There are cases which would go far to sustain the broad, general rule that, if arbitrators refuse...