Frissell v. Fickes

• Decision Date: 31 October 1858
• Citation: 27 Mo. 557
• Parties: FRISSELL et al., Defendants in Error, v. Fickes et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

27 Mo. 557

FRISSELL et al., Defendants in Error,

v.Fickes et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1858.

1. An umpire, chosen by arbitrators upon their own disagreement to decide the matter submitted to arbitration, must be sworn before he can hear the evidence in the cause.

2. Where a matter in dispute is submitted to arbitrators, with a power on their part, in case of a disagreement, to call in an umpire, the umpire may be appointed before the arbitrators commence their investigation, or at any stage of the proceedings; he ought to see and hear the witnesses.

3. It does not invalidate an award that the arbitrators join with the umpire in making the same.

4. Where in a submission to arbitration the matter in dispute is stated to be the “taking of a quantity of timber from the land” of the plaintiffs, the arbitrators would not be authorized to assess treble damages.

Error to Washington Circuit Court.

The error complained of in this case is the affirmance of an award made under the following agreement of submission: “Whereas, M., J. & J. Fickes, a firm composed of Morgan Fickes, John Fickes and Jacob Fickes, have taken a quantity of pine and oak timber growing and being upon the land of M. Frissell and M. A. Todd; and, whereas, it has been agreed between M., J. & J. Fickes on one part, and Frissell and Todd of the other part, to refer the amount of damages they, said Frissell and Todd, could and ought to recover by law from said Fickes for the taking of said timber to the arbitrament of George Walton on the part of Frissell and Todd, and J. W. Johnston on the part of said Fickes; and it is agreed between said parties that in case said arbitrators cannot agree upon the amount of damages to be awarded, the arbitrators above named may select an umpire to settle such matter as they may agree upon. It is further agreed that the amount of damages assessed by said arbitrators shall be paid or secured forthwith, and in default of such payment or security, the said award shall be made and become the judgment of the Circuit Court of Washington county; and the said M., J. & J. Fickes bind themselves to comply with the law rendering judgment by confession. In testimony whereof we have hereunto set our hands and seals this 8th day of July, 1856. [Signed] M. Frissell (seal), M. A. Todd (seal), Morgan Fickes (seal), John Fickes (seal), Jacob Fickes (seal).

An award was made, signed by the two arbitrators above named and Jesse McIlvaine, whom they had called in as umpire. They awarded treble damages to the plaintiffs. McIlvaine, the umpire, heard the testimony introduced before the arbitrators, but he was not appointed or sworn until after the arbitrators had heard all the testimony; no new testimony was introduced before the umpire. Motions to affirm the award and to vacate the same were made in the Circuit Court. The court affirmed the award.

Noell and Carter, for appellants.

I. The fact that McIlvaine, the umpire, was not sworn until all the evidence was closed, and that after being sworn he heard none of the evidence, makes the award a nullity, and no judgment could lawfully be entered upon it. (Toler v. Hayden, 18 Mo. 399.)

II. Treble damages should not have been allowed. Taking timber does not make the taker liable under the first section of the act concerning trespasses. (R. C. 1855, p. 1552.)

Frissell, for respondents.

I. The arbitrators were not called upon to appoint an umpire until they had disagreed. It was not necessary that he should hear any of the evidence. The submission contemplates that the arbitrators should state to him the matter upon which they differed, and that he should settle it. In...