Ferguson v. Ferguson

• Decision Date: 06 March 1936
• Docket Number: No. 1449.,1449.
• Citation: 93 S.W.2d 513
• Parties: FERGUSON v. FERGUSON.
• Court: Texas Court of Appeals

93 S.W.2d 513

FERGUSON v. FERGUSON.

No. 1449.

Court of Civil Appeals of Texas. Eastland.

March 6, 1936.

Rehearing Denied April 10, 1936.

Error from District Court, Haskell County; A. S. Mauzey, Judge.

Suit by A. M. Ferguson, individually and as temporary administrator of the estate of Kate F. Morton, deceased, against Joe Lee Ferguson. To review an adverse judgment, A. M. Ferguson, individually, brings error.

Affirmed.

See, also, 84 S.W.(2d) 836.

D. A. Frank, of Dallas, and M. J. Baird, of Sherman, for plaintiff in error.

F. M. Robertson and Davis & Davis, all of Haskell, and E. V. Hardwick, of Stamford, for defendant in error.

FUNDERBURK, Justice.

This is a suit brought by A. M. Ferguson, individually and as temporary administrator of the estate of Kate F. Morton, deceased, against Joe Lee Ferguson to set aside the award of a Board of Arbitration. A. M. Ferguson and Joe Lee Ferguson were the principal legatees and devisees of said estate. They became involved in numerous controversies over the estate and their relation to it. They, on September 17, 1932, at a time when many suits and proceedings involving such controversies were pending in the courts, executed a very comprehensive written agreement to submit the matters in controversy to arbitration. Since many of the controversies involved matters pending in the probate court and appeals from the probate court, the probate court, as provided in Rev.St.1925, art. 237, gave its consent for the submission. The agreement for submission comprehended every controversy and difference between the parties in any capacity either in litigation "or that might be subject to claims or litigation growing out of the estate and the administration thereof, and all other controversies and claims between them" except as to the validity or construction of the will of Kate F. Morton. The arbitration agreement did not purport to provide wholly for a statutory arbitration. It provided for statutory arbitration "except as modified by these agreements for the selection and organization of the arbitrators and the procedure and enlarged powers of the board of arbitration." (Italics ours.) There were other respects in which the agreement was not in its purport one for strict statutory arbitration. For instance, the arbitrators were authorized to make more than one award, at least tentatively or preliminarily, and there was a provision for rehearing on any such award. In contemplation that "there are * * * or may be matters in controversy that cannot be fully adjudicated by the board of arbitration" it was agreed that the parties "so far as they are concerned" should be bound, to the end that the awards would become final when the determination of such matters would permit. While there were provisions that the arbitrators "were not to be * * * a `Board of Compromise' or `Board of Conciliation'" and in their grant of power to render "substantial justice between the parties" were to do so "in accordance with statutory law and the ruling thereon by the courts"; yet it was provided that they "were not to be confined to strict forms of legal procedure in securing evidence or information"; they were empowered to "adopt such methods or rules of procedure as they may deem proper and necessary to a reasonable determination of any matter and may and are expected to make personal investigations on the law and the facts." (Italics ours.) Some of the extraordinary powers given the arbitrators by the agreement were: "Full authority to pass on conflicts, if any, in this contract and construe any part of this contract that may be ambiguous or not clear, in their discretion;" that upon the failure, neglect, or refusal of a party to the agreement to surrender any records, files, or to give or secure any information within their power to secure the "Board of Arbitration is authorized to take such neglect, failure or refusal into consideration in making the final adjustments of the claims between such parties and the estates and also in the partition of the estate"; with reference to agreements of the parties to enable the arbitrators to perform their duties, it was provided that the "board shall be the sole judge of proper and full compliance with the agreements," etc.; as to reports to be filed, it was agreed that the arbitrators "would be the judge of their completeness" with "power and authority to revise and restate said reports and base their findings thereon"; with reference to the failure of parties to comply with agreements designed better to enable the board to pass upon matters in controversy, it was provided that the arbitrators could construe "that the matters and claims under hearing are to be taken as true" and "make their findings accordingly."

The arbitration agreement reiterated that there was to be no right of appeal, and in order to enforce compliance with that provision declared that the parties mutually covenanted and agreed that "if either of said parties shall neglect, fail or refuse to adhere to the provisions of these agreements, or to carry into effect, or abide the award of said Board of Arbitration, he shall forfeit to the opposite party $35,000 * * * as liquidated damages." The agreement comprehended that the arbitrators were to make final partition of the estate between the parties. There was a provision that the "final decree or decrees of award" was to be filed with the county clerk of Haskell county, or the district court of said county.

Under this agreement, the arbitrators consumed eleven months in hearings and made their final award. Such award was filed with the county clerk and with the district clerk. A. M. Ferguson, in the several capacities in which he joined in the arbitration agreement, filed a motion in the county court on September 26, 1933, styled "Motion of A. M. Ferguson to construe the Arbitration Agreement." On the same day he filed another motion, in which it was recited that in said several capacities he "withdraws his appeal from the award of the board of arbitration * * * and * * * now moves this court to enforce and construe the arbitration agreement and the awards of said board * * * and to partition the property belonging to the estate in accordance with said awards," etc. The county court on September 5, 1933, by its order purported to make the award of the arbitrators the judgment of the county court. A. M. Ferguson appealed to the district court. In the district court, under cause No. 4380, he filed an instrument entitled "First Amended Motion to Set Aside Award of Board of Arbitration," etc. It contained 126 objections to the award. In answer to same, in addition to a general demurrer, Joe Lee Ferguson, styling himself "defendant," urged special exceptions to said objections numbered 2 to 126, inclusive. On October 23, 1933, the district court, presided over by Hon. A. S. Mauzey, overruled the general demurrer, but sustained special exceptions to all said objections, except objections numbered 2, 120, 121, 122, and 124, which were overruled. The record shows no exception to the action of the court in sustaining the special exceptions. No amended pleading was filed in response to such action. No assignments of error are presented complaining thereof. On the same day, the court in a nonjury trial gave judgment refusing plaintiff any relief and declaring the award of the board of arbitrators to be the judgment of the court. From that judgment A. M. Ferguson, individually and as temporary administrator, sued out writ of error to this court. The judgment as to A. M. Ferguson, temporary administrator, was heretofore affirmed by this court upon certificate. Ferguson v. Ferguson (Tex.Civ.App.) 75 S.W. (2d) 275. The cause has been submitted and stands for trial in this court upon the appeal of A. M. Ferguson, only in his capacity as an individual.

Upon the trial it was agreed that before the final award of the arbitrators was filed, A. M. Ferguson was allowed and paid $10,000 on his claim for compensation as temporary administrator, and an additional $10,000 on his claim for reimbursement for advances made by him for the estate while he was temporary administrator; that this money was used by him, $18,500 having been paid on one check and $4,085.93 on another check, out of the funds of the estate; the last payment having been made after the county court had adjudged the award of the arbitrators to be the judgment of the court. This part of the agreement related to the defendant's plea of estoppel. It was also agreed that the transcript of the testimony before the board of arbitration was in evidence as was also the pleadings before said board. The agreement indicates that the appeal from the judgment of the county court making the award the judgment of the court was consolidated with cause No. 4380 and heard as one case and in which the final pleadings were filed.

A few preliminary observations are deemed appropriate. In our opinion, the arbitration provided for in the arbitration agreement was not a strictly statutory arbitration and was not intended to be. "The arbitrations permitted by Texas laws are two kinds: common law and statutory. Agreements of the first class are binding upon the parties thereto, and are governed by the law of contracts." 4 Tex.Jur. p. 662, § 4; Callaway v. Albin, 114 Tex. 5, 261 S.W. 372.

We do not hold that the award was not sufficient as a statutory award, but we do hold that if it was not, then as...