Fluharty v. Beatty

• Decision Date: 24 November 1883
• Citation: 22 W.Va. 698
• Court: West Virginia Supreme Court
• Parties: Fluharty v. Beatty et al,(*Woods, Judge, Absent.)

22 W.Va. 698

Fluharty

v. Beatty et al, (*Woods, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted August 10, 1882

Decided November 24, 1883.

1. Presumptions are not to be raised for the purpose of overthrowing awards, but the awards are to be liberally construed so as to give effect and operation to the interests of the arbitrators, where it can be done, and every reasonable intendment is to be made in their support. (p. 705) 2. The award must be mutual and final; but where it is within the

submission, and the arbitrators award a certain sum to be paid by one party to the other without requiring a release to be executed on the payment of the sum, it is mutual and final, because its legal effect is to discharge the party paying the money from all demands within the submission by the party who receives the money. (p. 706.)

3. A court of equity will interfere and set aside an award, whenever

such manifest and palpable injustice has been done, as to show fraud, corruption or misconduct in the arbitrators, (p. 706.)

4. The court can look into the testimony which was before the arbi-

trators for the purpose of determining from such evidence and other circumstances, whether the errors were so gross or palpable as to show fraud, corruption or gross misconduct in the arbitrators. (p. 706.)

5. A court of equity will set aside an award for fraud, collusion, cor-

ruption or gross misconduct in the arbitrators, (p. 706.)

6. If the arbitrators unreasonably refuse to hear competent witnesses

offered by either party, this is such gross misconduct as to vitiate the award. (706.)

7. A court of equity will not set aside an award on account of the

omission of the arbitrators to act upon a matter submitted, unless such omission was to the prejudice of the complainant, (p. 707.)

8. If the arbitration-bond, which contains the submission, was pro-

cured by the fraud of one of the parties, this would be sufficient ground to impeach the award, unless the fraud was condoned, (p. 707.)

The opinion of the Court contains the facts of the case.

James Morrow, Jr. for appellant.

W. W. Arnett for appellee.

Johnson, President:

On the 11th clay of August, 1874, the plaintiff, William Fluharty, and the defendant, W. D. Beatty, entered into the following agreement:

" Article of agreement made and concluded this 11th day of August, 1874, between William Fluharty of the first and William D. Beatty of the second part, said Beatty agrees to bring a good saw-mill and set it up on the lower end of said Fluharty's home-farm, on or about October next, and buy said mill as cheap as he can, and sell said Flaharty one half interest in said mill at cost, and take the pay out of the lumber when sold and collected. Said Fluharty is to have the privilege of putting his timber into the mill, to be sawed on the halves, but in the event that said Fluharty does not put in logs to the mill as fast as the mill can saw, then said Beatty is to have the privilege of putting in timber to keep the mill going, for which said Fluharty is to have one fifth of the lumber when sawed, or the monety at the same rate. This contract is to run for one year, and at that time if we do not get along agreeable, said Beatty is to set the price on the mill, and Fluharty agrees to buy or sell to said Beatty at the same price."

On the 26th of November, 1874, the said parties made another agreement, stating that a difficulty had arisen between them in reference to said mill, and they thereby annulled the former contract and made annother, by which they set out more plainly the interest and rights of each in the contract. By this contract, Fluharty agreed to " allow Beatty to take from his lands five hundred thousand feet of lumber, inch measure. * * * If Fluharty elected to take his interest in the lumber in money he was to have one fifth of the proceeds of the sale thereof, he to pay one fifth of the expense of removing the lumber to market, or he might take one fifth of the logs in the mill-yard, or one fifth of the lumber in the yard if he elected to take the logs. Beatty was to saw them into any kind of lumber he desired." The said Beatty was permitted to lay a tram-road, and was to put up gates across it, &c. There were a number of other provisions in the contract not necessary to mention.

Two days after this contract, on the 28th day of November, 1883, Fluharty gave to Beatty the following receipt: "Received of William I). Beatty one note of hand signed by Wm. I). Beatty and E. G. Snodgrass calling for seventy-five dollars, dated November 28, 1874, and due six months after date, which said note is in full satisfaction of all matters of dealing between the undersigned and the said William D. Beatty in reference to the portable steam saw-mill now upon the lands of the undersigned; the same to include timber remaining at said mill, and also the labor done by the boys, team, &c., of the undersigned, up to the commencement of sawing a bill of about fifteen thousand feet for the B. & O. R. R. Co., as named in the article of agreement, this 28th day of November, 1874." The agreement referred to is evidently the agreement executed on the 26th November, 1874, as that agreement refers to the bill of lumber to be sawed for the B. & 0. E, R. Co. The parties still did not agree, and on the 29th day of January, 1875, they entered into the following arbitration-bond:

"Know all men by these presents, That we, Wm. Fluharty and William I). Beatty are held and firmly bound unto each other in the just and full sum of one thousand dollars lawful money of the United States, to the payment of which, well and truly to be made to each other, we each of us, bind oarselves, our heirs, executors, administrators and assigns jointly, severally and firmly by these presents. Sealed with our seals and dated this 29th day of January, 1875. The condition of the above obligation is such, that whereas, a difficulty has arisen between the undersigned parties with reference to a contract existing between them, dated the 28th day of November, 1874, with reference to a portable steam saw-mill, engine, boiler, fixtures, &c, that is now upon the lands of William Fluharty, one of the parties to this bond, and also with reference to all the terms of the aforesaid contract in anywise whatever. Now we, the undersigned parties to this bond, hereby agree and bind ourselves under the aforesaid sum of one thousand dollars, each to perform and abiele by the award, order, arbitrament, and final determination of Nimroel Morgan, Silas S. Kendall and Engenius Wilson, arbitrators, chosen and agreed upon by each of the parties to this bond, who are to proceed, after being-duly sworn for the purpose, to ascertain and determine and settle between the said parties to this bond any and all matters pertaining to or connected with the contract aforesaid, or in anywise pertaining to the portable steam saw-mill, engine, boiler, fixtures, &c, so far as any civil or (rimmed contract between the parties to this bond are concerned with reference to said mill, &c. and as a further consideration of this bond, the said Fluharty, party to this bond as aforesaid, is to take the said portable steam saw-mill, engine, boiler, &c, from Wil- liam D. Beatty, also a party to the bond, and pay to the said William 3). Beatty any and all sums that he, the said Beatty, may have heretofore paid on said mill; and also the said Fluharty is to pay the balance unpaid on said mill, either to the said William D. Beatty, or to the party from whom he (Beatty) purchased said mill, at the time, or times when the said purchase-money will be due for said mill; and as a further consideration of this bond the said William Fluharty, party as aforesaid, is to pay the said William I). Beatty (also a party to this bond) whatever sum the said arbitrators may agree upon for the damages, if any, arising under and by virtue of the contract aforesaid, and the said Fluharty is to pay to the said William D. Beatty, whatever sum the said arbitrators, or any two of them, may agree upon for the benefits that may or might arise or accrue to the said William D Beatty, under the contract aforesaid, to be paid at such time or times as the said arbitrators may agree upon. In short the aforesaid arbitrators are to settle and determine, all matters of difference and dispute between the parties to this bond, in anywise appertaining or belonging to the contract aforesaid, or to the mill aforesaid, so far as any civil or criminal matter is concerned between them in reference to said mill, and that the said arbitrators shall make their award in writing, which shall be binding and final upon both the undersigned parties."

The said bond was signed and sealed by each of said parties on the said 29th day of January, 1875, on which day the said arbitrators made the following award:

"January 29, 1875.

" We, Silas S. Kendall, Eugenius Wilson and Mmrod Morgan, being chosen by William Fluharty and W. I). Beatty as arbitrators to settle all the matters and differences between said parties, after being duly sworn, find the following as our award, to-wit: That the said William Fluharty is to pay Henry Tetrick the balance remaining unpaid on the mill that is now on the farm of said William Fluharty, W. D. Beatty having paid two hundred dollars on said mill; also the said William Fluharty is to pay W. D. Beatty the sum of seven hundred dollars in the following payments: One half in six months, and the remaining one half in twelve months. The above award includes settlement of all the work done by William Fluharty's boys, except that done by Henry Fluharty; and the said W. I). Beatty is to have all the lumber that is at the mill, with privilege to haul the same away, and all that has been hauled away, and give immediate possession of the mill to said Fluharty.

" S. S. Kendall," Eugenius Wilson, "Nimrod Morgan."

The said Fluharty in pursuance of said award executed his notes to said Beatty and took...