Currier v. Lowe
| Decision Date | 31 March 1862 |
| Parties | WARREN CURRIER, Respondent, v. SAMUEL B. LOWE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
This was an action upon an award at common law.
The petition stated that on February 28, 1859, controversies were pending between plaintiff and defendant concerning a contract for the building by defendant of forty cattle cars for the North Missouri Railroad Company, of which contract plaintiff was entitled to one half the profits; that said matter was referred to one Roberts, by consent of parties, who, having heard the parties and their proof, awarded the plaintiff the sum of one thousand nine hundred and six dollars eighty five cents, with fifty dollars, one half the arbitrator's costs.
The defendant by his answer denied the alleged submission; denies that he agreed to abide by the award, and denied that any legal and valid award was ever made in the premises.
Upon the trial, the plaintiff proved the written award of the arbitrator, of which a copy had been given to each party.
The arbitrator was called as a witness to prove the grounds of his award, &c. Evidence to show an error in the action of the arbitrator was excluded.
The court gave for plaintiff the following instruction, to which defendant excepted:
“If the court believe from the evidence, that matters in difference between plaintiff and defendant were submitted to James S. Roberts by them for his decision, they agreeing to abide by and perform his award, and said Roberts did make an award in writing in accordance with the terms of said submission, and delivered a copy thereof to plaintiff and defendant, then defendant is bound by said award, and plaintiff is entitled to recover the amount awarded to him as found by said award, and interest thereon from the date of said award.”
For the defendant, the court gave the following instruction:
“If it appear from the evidence that the contract between Lowe and Sedgwick, read in evidence by plaintiff, was a material part of the terms of the submission alleged by the plaintiff, and if it further appear that the arbitrator in making his award wholly disregarded any material provision for the benefit of defendant therein contained, then the award was invalid and plaintiff cannot recover thereupon.”
Krum and Decker, for appellant.
I. Parol evidence was admissible to show that the arbitrator had committed a mistake of law or fact.
II. The plaintiff was not entitled to recover the costs of $50 awarded against defendant. (Caldwell on Arb. 197, and cases cited; 8 Mass. 399; Hansen v. Weber, 40 Maine, 194; Vose v. How, 13 Metc. 243; Hinman v. Hapgood, 1 Denio, 188.)
Currier, for respondent.
I. The evidence ruled out was properly excluded, because it was to the merits of the award which were not in issue, and not open to investigation under the pleadings. (R. C. 1855, p. 1232, § 12.)
II. The defence set up should have been specially pleaded. It was an equitable not a legal defence, and should have been properly stated in the answer. (Taylor v. Carryall, 12 Serg. & R. 243; Newland v. Douglas, 2 J. R. 61; Bartlett v. Todd, 3 J. R. 366; Cranston v. Kenny, 9 J. R. 212; Phil. Ev., C. & H. N., 343.)
The authorities all distinguish between awards made under a rule of court and awards made in virtue of a voluntary submission at common law. The former can be corrected or set aside by the court granting the rule; the latter only in a court exercising chancery jurisdiction.
In this State, under the new system, the party seeking equitable relief must state the facts which authorize it. (Jones v. Brinker, 20 Mo. 87; Vasquez v. Ewing, 24 Mo. 31.)
III. The arbitrator was not a competent witness to prove the facts in avoidance of the award. (Elmaker v. Buckley, 16 Serg. & R. 72; Kingsland v. Kincaid, 1 Wash., C. C., 448; Newland v. Douglass, 2 J. R. 52; Efner v. Shaw, 2 Wend. 567; 1 Phil. Ev., C. & H. N., 166; 1 Green. Ev., § 236 & 249.)
The defendant urges two grounds of complaint against the proceedings of the Circuit Court, which we will notice in their order. First, that the court excluded the evidence which the defendant introduced to prove that the...
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