Ellison v. Weathers

• Decision Date: 30 April 1883
• Citation: 78 Mo. 115
• Parties: ELLISON v. WEATHERS, Appellant.
• Court: Missouri Supreme Court

78 Mo. 115

ELLISON

v.WEATHERS, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

J. Morris Young and Phelps & Brown for appellant.

A. L. Thomas for respondent.

RAY, J.

This case originated before a justice of the peace in Jasper county, where the plaintiff had judgment, from which the defendant appealed to the circuit court, where plaintiff again had judgment, from which the defendant appealed to this court. The statement filed before the justice was to the effect following:

“Plaintiff states that on the -- day of November, 1878, he was the owner of one white heifer, of the value of $25, which defendant wrongfully took from plaintiff and converted to his own use, to the damage of plaintiff in the sum of $40. Plaintiff further says that on the -- day of November, 1878, he and defendant, by agreement, selected three arbitrators, (Buchanan, Potts and Ellis,) to hear and determine said controversy; that they submitted the same to said arbitrators, each party agreeing to abide the decision, and perform whatever should be adjudged and determined by said arbitrators; that said arbitrators, after hearing the evidence produced by the respective parties, made and published their award, in the presence and hearing of the parties, to the effect following: ‘That if the defendant retained the heifer, he should pay the plaintiff the sum of $15 for said heifer, and all the witness fees and mileage, and pay plaintiff for his own fees as a witness.’ Plaintiff says that the defendant thereupon agreed to pay plaintiff said sum of $15, and the further sum of $15 witness fees, there being seven witnesses taken by plaintiff, who traveled seventeen miles to place of trial; and that the defendant refuses to pay the same to plaintiff, although the same is due and unpaid. Thereupon he asks judgment against the defendant for the sum of $30, with interest and costs.”

Neither party requiring a jury, the case was submitted to the court for trial. The record shows that the agreement to arbitrate, the submission to arbitrators, as well as the award of the arbitrators, were altogether oral; that Buchanan, Potts and Ellis were all chosen as the arbitrators; that the question submitted to them for decision was the “ownership” of the heifer; that all three of the arbitrators met to hear, consider and determine the question thus submitted; that the plaintiff and defendant, with their witnesses, appeared before said arbitrators and testified about the matter; that it appeared from said testimony that prior to the date of the arbitration the plaintiff had been in the possession of said heifer, but that the defendant had driven her off, and at the time of the arbitration had her in his possession in a lot close by where the arbitration was being held--both parties claiming to be the owner; that, after hearing all the testimony produced by the respective parties, the arbitrators all retired to consider and determine the question, (and also proceeded to said lot to look at the heifer in controversy,) and thereupon made and published their award, in the presence and hearing of the parties, to the effect “that the heifer belonged to the plaintiff;” and further, “that if the defendant elected to retain the heifer, he was to pay the plaintiff $15, as the value of the heifer, and to further pay all the costs of the arbitration, witness fees, etc.; if the defendant returned the heifer to the plaintiff, then he was to pay half the costs and the plaintiff the other half.”

What followed this announcement of the award, the record shows was differently stated by the parties and witnesses, and in some particulars was the subject of conflicting and contradictory testimony. On some of the points, however, all the witnesses as well as the parties agree. The plaintiff and witness Buchanan both testify that upon the announcement of the award, the defendant said he would retain the heifer, pay the $15, as the value of the heifer, and the costs. The defendant and witness Chase each deny that defendant said any such thing. Other witnesses testify that they did not hear the defendant say he would pay the award. All the witnesses, however, including both plaintiff and defendant, agree in testifying that upon the announcement of the award, the defendant said (presumably addressing the witnesses) “Boys, what's your bills;” or, (as one witness expressed it,) “Boys come up here till I see what you are going to charge me.” All the witnesses and parties further agree that the defendant thereupon also, asked Esq. Ellis what his fees were, and paid him $2, the amount of his charges. The record further shows that the defendant retained the heifer and made no offer to return her to the plaintiff; that the plaintiff was present during all this time, and expressed no dissent and made no objections to what the defendant said and did; nor did he set up any claim or make any demand for the heifer.

Buchanan testified that he, Potts and Ellis were the three arbitrators, who heard and tried the case as such; that after hearing the testimony, they all adjourned to the lot and looked at the heifer in controversy; that they all agreed that the plaintiff was the owner of the heifer; that Ellis then said we should fix the value of the heifer; I said she was worth $18. Potts thought $13 was enough, when Ellis decided the value to be $15. Ellis also said we must settle about the costs, which we did. We all then returned to the school house where the arbitration was held, and Ellis announced the award as hereinbefore stated.

Ellis testified that he was present at the arbitration, that he acted as umpire only, and not as one of the arbitrators; that he did not understand or consider himself as one of the arbitrators, but solely as umpire, and only called on to act in case the two arbitrators did not agree; that he swore the witnesses and the two arbitrators, Buchanan and Potts, but that he was not sworn; that the award was as stated; that he had nothing to do in making said award, except to decide the value of the heifer, when the two arbitrators differed as to the value; that he did not concur in or approve the award, but at the request of the two arbitrators he announced the award, but made no announcement of his dissent or objection to the same.

Buchanan on being re-called, said he never heard that Ellis did not consider himself as one of the arbitrators. He appeared to be acting as one, and I considered him as one. He never objected to the decision as to who was the owner of the heifer.

At the close of the testimony the court gave the following instructions for the plaintiff, over the objections of the defendant, who excepted:

1. If the court find from the evidence that the plaintiff and defendant authorized Walter Buchanan, H. C. Potts and S. J. Ellis to settle and determine a certain dispute arising between them in relation to a certain heifer, agreeing to abide and perform whatever should be determined by said Buchanan, Potts and Ellis, and that after hearing the statements and evidence of the parties, they decided that if the defendant retained the heifer, he should pay the plaintiff $15 and all costs, and that afterward defendant elected to retain the heifer and agreed to pay said sum and costs, then the finding shall be for the plaintiff.

2. If the court find from the evidence that the plaintiff and defendant submitted a controversy, in regard to a certain heifer, to Walter Buchanan and H. C. Potts, as arbitrators, and Esquire Ellis, as umpire, to decide if the arbitrators could not agree; mutually agreed to abide by and perform such award as the arbitrators should make, or such as the said Ellis should make if said arbitrators could not agree, and that the said arbitrators, after hearing the evidence, awarded and published that if the defendant retained the heifer he was to pay plaintiff $15 and all costs incurred before such arbitrators, and if the court finds that defendant then elected to retain said heifer and pay said costs, and did then pay a part of said costs, then the finding should be for the plaintiff.

The court also refused the following instructions asked by the defendant, to which he excepted:

1. The court sitting as a jury declares the law to be that under the pleadings and evidence in this case, the plaintiff is not entitled to recover.

2. If the court, sitting as a jury, believe from the evidence that the plaintiff and defendant mutually agreed to and did arbitrate and submit the question, as to whether the plaintiff or defendant was the owner of a certain white heifer, mentioned in plaintiff's statement, to Buchanan, H. C. Potts and Esquire Ellis, a justice of the peace of Cherokee county, Kansas, as arbitrators, and that said arbitrators awarded that plaintiff was the owner of said heifer, and assessed the value of said heifer at $15, and further awarded that if defendant retained said heifer, he should pay the plaintiff the sum of $15 and all the costs and expenses of said arbitration; or if the plaintiff retained the heifer, then the plaintiff was to pay one-half the costs and expenses of said arbitration, then the plaintiff cannot recover in this action.

3. That if the arbitrators took into consideration and made an award about matter not involved in the submission to them, then the award is unauthorized and void as to such matter; therefore, if the court, sitting as a jury, believe from the evidence that the said arbitrators awarded and determined, that in the event that defendant retained the heifer in controversy, he should pay the plaintiff the sum of $15, and all the costs and expenses of said arbitration, or if the plaintiff retained the heifer, then the plaintiff was to pay one-half the costs and expenses of said arbitration, then said award is void, and the court should find for the defendant.

4. If the court find from the evidence that all the arbitrators did not join or concur...