Evans v. De Spain, 7546.

• Court: Texas Court of Appeals
• Writing for the Court: Baugh
• Citation: Evans v. De Spain, 37 S.W.2d 231 (Tex. App. 1930)
• Decision Date: 17 December 1930
• Docket Number: No. 7546.,7546.
• Parties: EVANS v. DE SPAIN.

37 S.W.2d 231

EVANS v. DE SPAIN.

No. 7546.

Court of Civil Appeals of Texas. Austin.

December 17, 1930.

Rehearing Granted in Part and in Part Overruled March 4, 1931.

Appeal from District Court, Lampasas County; Few Brewster, Judge.

Action by J. W. Evans against A. J. De Spain to set aside an award of arbitrators. From a judgment sustaining the award, plaintiff appeals.

Reversed and rendered.

J. A. Thomas, Lloyd Kerr, and Louis D. Gayer, all of San Angelo, for appellant.

Roy L. Walker and J. C. Abney, both of Lampasas, for appellee.

BAUGH, J.

Appellant and appellee submitted certain matters in controversy between them to arbitration under the provisions of title 10 (articles 224 to 238), R. S. 1925. Appellant attacked the award of the arbitrators on several grounds and sought to have same set aside. The district court sustained the award and entered it as judgment of the court. Hence this appeal.

The case arose as follows: A. C. Allen and Mattie Sanderson owned a 3,000-acre ranch in Lampasas county. They leased it to A. J. De Spain for a period of three years, beginning October 31, 1928, at an annual rental of $2,250, $1,750 was then paid, and $500 retained by lessee to secure the construction by lessors of certain fences they agreed to build within 40 days. Appellant bought said ranch on February 4, 1929. It appears that a controversy arose over the lessors' failure to build the fences; that an attempted resale by Evans of said property was interfered with by De Spain who claimed damages against the property because of the failure to complete said fences; and that on September 25, 1929, an arbitration agreement was entered into between Evans and De Spain, in which Evans was designated as plaintiff and De-Spain as defendant, the pertinent portions of which read as follows:

"It now appears that defendant claims said fence was not completed and is demanding damages from plaintiff by reason thereof and plaintiff is claiming that said contract has been forfeited by reason of said De Spain having paid to A. C. Allen said sum of $500.00 prior to the completion of said fence.

"The plaintiff further claiming damages by reason of A. J. De Spain having interfered with the sale of said land and having broken up a contemplated sale of said land, plaintiff having actually paid the sum of $1107.50 dollars to real estate brokers for securing a purchaser for said land.

"And whereas said parties desire to arbitrate such differences and matters in dispute in the manner provided by law."

Then followed designation of arbitrators, direction that they proceed under the statute, and a waiver of all rights of appeal from their findings.

On September 26, 1929, said arbitrators filed with the district clerk their findings and award, as follows: "We find that under the terms of said lease contract that the said A. J. De Spain complied with the terms thereof and is entitled to a judgment for the sum of $1800.00 damages in settlement of the balance due under the terms thereof as against the said J. W. Evans, and in addition thereto is entitled to the possession of said property so leased until the 15th day of December, 1929, on which date he shall surrender possession thereof to the said J. W. Evans, and all claims of any and all characters submitted to us, including damages claimed by plaintiff for defendant breaking up land sale shall and is hereby settled between said parties."

The award being a statutory award and the right of appeal waived, it became the duty of the court, if such award is valid, to enter it as the judgment of the court, and in so doing the court's acts are purely ministerial. Article 231, R. S. 1925; 4 Tex. Jur. 694. While article 233 provides that, where no right of appeal is reserved in the agreement, the decision of the arbitrators shall be final, such an award can be attacked in any event for partiality, fraud, misconduct, or gross error. Ridgill v. Dupree (Tex. Civ. App.) 85 S. W. 1166; Robbs v. Woolfolk (Tex. Civ. App.) 224 S. W. 232; 4 Tex. Jur. 686, and cases there cited. And an award of the arbitrators in excess of the authority given them by the agreement is void, unless the excess is such as may be disregarded and the valid award left standing. Fortune v. Killebrew, 86 Tex. 177, 23 S. W. 976.

The record does not disclose upon what evidence the arbitrators reached their decision. The agreement above set out submitted to the arbitrators three questions:

1. Damages to De Spain resulting from the failure to complete the fences agreed to be built.

2. Whether De Spain had forfeited his lease on the ranch.

3. Whether De Spain was liable in damages to Evans for interfering with the sale by Evans of said ranch.

It is not clear upon what theory Evans was charged with being liable for damages for the failure of Allen to build the fences in...