Ezell v. Rocky Mountain Bean & Elevator Co.

• Court: Colorado Supreme Court
• Writing for the Court: BURKE, J.
• Citation: Ezell v. Rocky Mountain Bean & Elevator Co., 76 Colo. 409, 232 P. 680 (Colo. 1925)
• Decision Date: 05 January 1925
• Docket Number: 11025.
• Parties: EZELL v. ROCKY MOUNTAIN BEAN & ELEVATOR CO.

232 P. 680

76 Colo. 409

EZELL v. ROCKY MOUNTAIN BEAN & ELEVATOR CO.

No. 11025.

Supreme Court of Colorado

January 5, 1925

Department 1.

Error to District Court, Las Animas County; A. F. Hollenbeck Judge.

Action by W. R. Ezell against the Rocky Mountain Bean & Elevator Company. Judgment of nonsuit, and plaintiff brings error.

Affirmed.

Frank H. Hall, of Trinidad, for plaintiff in error.

McHendrie & Shattuck, of Trinidad, for defendant in error.

BURKE J.

These parties appear here in the same order as below, and we hereinafter so refer to them. Plaintiff bought beans of defendant, which the latter failed to deliver. Thereupon this action was brought for damages in the sum of $4,800, the advance in price. At the close of plaintiff's evidence defendant's motion for nonsuit was sustained, and judgment entered accordingly. To review that judgment plaintiff prosecutes this writ.

The contracts of purchase and sale were in writing, and each provided among other things:

'Any dispute arising under this contract to be settled by arbitration. * * * Failure of seller to ship or buyer to accept shall be considered a dispute to be settled by arbitration. * * * In the event of failure of seller to ship within specified time, * * * except for causes already provided for in this contract, it shall be considered as a dispute to be submitted to and settled by arbitration.'

These contracts further specified the arbitrators, etc., and provided that, in the event of the failure of either party to comply with the award within 10 days, the other might maintain a court action to enforce it. One of the defenses set out in the answer was the arbitration agreement and plaintiff's failure to comply therewith. Such failure was denied by the reply, but established by the evidence, and is now admitted.

Plaintiff's position is that the contract required all disputes arising under it, of law as well as of fact, to be submitted to arbitration, and that such contracts are void as against public policy, because they are attempts to oust the courts of jurisdiction. Defendant contends, first, that such is not the modern law of arbitration; second, that, read as a whole the contract amounted to nothing more than an agreement to arbitrate disputed questions of fact; third, that the questions here in dispute--(a) Did the seller fail to ship according to contract? (b) If so, in what sum was the purchaser damaged?--are questions of fact.

There is much conflict in the authorities on this subject, and we do not feel called upon to review and attempt to reconcile them. The contention of plaintiff was once supported by the common law. 5 C.J. p. 42, § 68. The reason upon which it was based does not appeal to us. Inasmuch as parties to a dispute may decline to litigate, we see no reason why they may not contract to so refrain, or contract to settle their differences in any other lawful manner. The old common-law rule has, however, been much relaxed in modern times. 13 C.J. p. 457, § 398. Moreover, questions of public policy are primarily legislative. 13 C.J. p. 426, § 362. Where the Legislature has provided a method of arbitration, the objection that such arbitration ousts the courts of jurisdiction is without merit. Zindorf Const. Co. v. Western American Co., 27 Wash. 31, 67 P. 374. Such legislative arbitration has been provided in this state. Chap. 27, p. 161, C. L. 1921.

True the arbitration here contracted for is common law, not statutory, but, the question of public policy having been thus settled, the only material difference in the two is that in a common-law arbitration suit must be brought on the award, whereas in a statutory arbitration the award is filed in the office of the clerk of the district court, and execution is issued thereon. McClelland v. Hammond, 12...