Grand Rapids & I. Ry. Co. v. Jaqua

Decision Date13 February 1917
Docket NumberNo. 9145.,9145.
Citation115 N.E. 73,66 Ind.App. 113
CourtIndiana Appellate Court
PartiesGRAND RAPIDS & I. RY. CO. v. JAQUA.

OPINION TEXT STARTS HERE

Appeal from Superior Court, Delaware County; Robert M. Van Atta, Judge.

Action by Alonzo L. Jaqua against the Grand Rapids & Indiana Railway Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.The plaintiff's given instructions 1, 2, 5, and 6 are as follows:

No. 1. The court instructs you that, where an agreement in writing is entered into between two parties to submit to arbitration any matter of difference between them, such written submission to so arbitrate such differences cannot be revoked by a verbal notification by either of the parties, but the same must be revoked, if at all, by some notice in writing.

No. 2. When two parties have agreed to submit matters in difference between them to arbitration, such submission can be revoked only by express and positive notification to that effect by the party wishing to withdraw such submission, or by such acts, conduct, or language as that such revocation may be clearly and unequivocally inferred therefrom.

No. 5. Ordinarily the common-law form of arbitration requires that a hearing be had as to the merits of the controversy at which each of the parties shall have an opportunity to be heard; but if the conditions of the submission are that no evidence is to be heard, but that the arbitrators are simply to view the premises and render their awards, then the jury may be justified in assuming that notice of hearing and the hearing itself has been waived.

No. 6. Where an agreement to arbitrate has been entered into, and the matters in difference are to be submitted to two arbitrators, of which each party selects one, and in the event of such arbitrators failing to agree they are to select a third, and if after such disagreement a third arbitrator is selected, and thereafter one of such arbitrators refuses to act further in the matter, the remaining two arbitrators may proceed to the rendition of the award.

Roscoe D. Wheat, of Portland, for appellant. Frank B. Jaqua, of Portland, for appellee.

BATMAN, J.

This is an appeal from a judgment against appellant in favor of an award returned upon a common-law arbitration. The complaint is in two paragraphs, to each of which a demurrer was filed for want of facts, with memorandum. Each of such demurrers was overruled, and proper exceptions were reserved. An answer in four paragraphs was filed. A demurrer was addressed to the second paragraph thereof, which was sustained, and the proper exception reserved. A reply in general denial was filed to the third and fourth paragraphs of answer. Trial by jury, verdict in favor of appellee for $700 and costs, on which judgment was rendered. Appellant filed a motion for a new trial, which was overruled, and a proper exception reserved. Appellant assigned errors, and relies for reversal on the action of the court in overruling its demurrer to each paragraph of the complaint, in sustaining the demurrer to its second paragraph of answer, and in overruling its motion for a new trial.

The first paragraph of complaint alleges, in substance, that the appellant elevated its railroad track to a height of several feet adjacent to appellee's property; that he was damaged thereby, and made a claim against appellant therefor; that thereafter such negotiations were had between appellee and appellant as that appellee offered in writing to submit the question of such claim for damages to two arbitrators, one to be selected by by each party, and in case such arbitrators could not agree, then such arbitrators to select a third, and the decision of a majority of such board of arbitrators was to be taken as final; that he could not set out a copy of such proposition for the reason that it was in the possession of the appellant, and he had no copy thereof; that appellant accepted said proposition to arbitrate by sending to him the following letter:

“Grand Rapids, Mich., April 22, 1912.

Mr. A. L. Jaqua, Portland, Indiana-Dear Sir: Replying to your letter of April 17th: In deference to your wishes, we will be glad to appeal to arbitration in this case, and the matter has been placed in the hands of General Counsel Campbell for that purpose. Yours truly, J. H. P. Hughart, Vice President and General Manager.”

That thereafter, on May 7, 1912, the appellant selected E. S. Jones as its arbitrator, and the appellee selected John E. Adair as his arbitrator; that said arbitrators met thereafter and viewed the premises involved, and were unable to agree as to the amount of appellee's damages; that thereupon said arbitrators agreed upon and selected Irvin Black to act as a third arbitrator, and said Black entered into an investigation of the matters involved with said original arbitrators; and thereafter, on the 30th day of September, 1912, the said John E. Adair and said Irvin Black agreed that appellee should be awarded the sum of $650, and thereupon rendered their award in writing for said amount, a copy of which is filed with the complaint and made a part thereof; that the said E. S. Jones refused to agree or to sign said award; that on the date of said award a copy thereof was delivered by such arbitrators to appellant and appellee; that appellee since the rendition of such award and before the bringing of such action demanded of appellant the payment thereof, but such payment was refused; that said sum, with interest since the rendition of said award, is now due and wholly unpaid. Prayer for judgment for $7OO.

The second paragraph of complaint is, in substance, the same as the first, except it relies upon a parol agreement to submit the same claim to arbitration under the common law.

[1] We do not set out a copy of the award, as the only objection made to it is based on the fact that it is only signed by two arbitrators instead of three. Appellant contends that the first paragraph of the complaint does not show such an acceptance of appellee's offer as constitutes an agreement to arbitrate, and therefore fails to state a cause of action. We cannot agree with appellant in this contention. It is well settled that an acceptance of an offer need not be formal. Any words may be used from which an acceptance may be reasonably understood, when taken, in connection with the subject-matter and the offer made. It will be observed that it is not only alleged that appellee made appellant an offer to arbitrate, but also named the number to constitute the board to which the difference should be submitted, and the number required to make an award thereunder. It will also be observed that the letter alleged to have been received in response to such offer, when fairly construed, clearly agrees to arbitrate, and expressly states this is done in deference to appellee's wishes. The only question then remaining is: Can it be said that such acceptance was broad enough to cover the terms of the offer made by the appellee? When such letter was written, the writer evidently had knowledge of the terms of the offer made, and it is significant that, while the writer knew what they were, and that appellee must be relying on the same, still he made no objections to such terms, or suggested any other. Under such circumstances we do not believe appellant can now be heard to say that the terms proposed by appellee's offer were not included in the acceptance. But if there was any question in that regard, the allegations of the subsequent acts of appellant, taken in connection with the letter, clearly show an acceptance of the terms of appellee's offer. It appears from the paragraph of complaint under consideration that the parties proceeded in accordance with the terms of the offer in appointing arbitrators. This of itself is a strong circumstance going to show that the full terms of the offer were covered by the acceptance, since we have a right to interpret the scope of the acceptance from the subsequent conduct of the acceptor. This is in line with the authorities which hold that, where parties have by their acts given a construction to a contract entered into by them, the court will adopt and enforce that construction. Childers v. First National Bank of Jeffersonville (1897) 147 Ind. 430, 46 N. E. 825;Frazier v. Myers (1892) 132 Ind. 71, 31 N. E. 536;Reisser v. Oxley (1881) 80 Ind. 580. We therefore conclude the first paragraph of complaint is sufficient to withstand a demurrer for want of facts.

[2] Appellant contends that the second paragraph of complaint is not sufficient, because there is no averment of authority on the part of any one to enter into such an agreement on behalf of appellant. It is true that corporations can only act through their duly constituted agents as claimed by appellant, but it is not necessary to allege the authorization of any act charged to a corporation in a pleading. It is sufficient to allege that the act in question was done by the corporation, and then prove that it was done by constituted authority. 3 Thompson on Corporations (2d Ed.) p. 1096, § 3152; 5 Ency. of Pl. & Pr. p. 92; School Town of Rochester v. Shaw (1885) 100 Ind. 268. The objection, therefore, is not well taken.

[3] Appellant also claims that the court erred in sustaining appellee's demurrer to its second paragraph of answer, since no memorandum was filed therewith. This paragraph of answer is drawn on the theory of a revocation by appellant of the agreement to arbitrate. In order for such a paragraph to withstand a demurrer, it must not only show an express and positive revocation, but must also allege that notice thereof was given to the arbitrators. Goodwine v. Miller (1869) 32 Ind. 419; 5 C. J. p. 58, § 109. This paragraph is insufficient in each of these particulars. The letter relied on as a revocation falls far short of an express and positive declaration, but merely expresses regret that arbitration had failed. This we deem insufficient,...

To continue reading

Request your trial
5 cases
  • Indiana Ins. Co. v. Noble, 569A84
    • United States
    • Court of Appeals of Indiana
    • 30 December 1970
    ...be revoked at any time prior to an award, but once an award has been made, the parties are bound thereby. Grand Rapids & I. Ry. Co. v. Jaqua, 66 Ind.App. 113, 115 N.E. 73 (1917); Heritage v. State, 43 Ind.App. 595, 88 N.E. 114 (1909). Against this legal background, the defendant would have ......
  • Neuwelt v. Roush, 17793.
    • United States
    • Court of Appeals of Indiana
    • 28 April 1949
    ......Grand Rapids & I. R. Co. v. Jaqua, 1917, 66 Ind.App. 113, 115 N.E. 73;Connor v. Jones, 1945, 115 Ind.App. ......
  • Neuwelt v. Roush
    • United States
    • Court of Appeals of Indiana
    • 28 April 1949
    ...... available error where they correctly state the law with. reference to an issue involved. Grand Rapids & I. R. Co. v. Jaqua, 1917, 66 Ind.App. 113, 115 N.E. 73; Connor v. Jones, 1945, 115 ......
  • Atlas Const. Co., Inc. v. Indiana Ins. Co., Inc.
    • United States
    • Court of Appeals of Indiana
    • 17 April 1974
    ...to control the construction of an agreement, when the meaning of the parties is palpable.' See also Grand Rapids & Ind. Ry. Co. v. Jaqua (1917), 66 Ind.App. 113 at 121, 125, 115 N.E. 73. (A) NEITHER FAILURE OF NOTICE, NOR ABSENCE OF ONE APPRAISER FROM MEETING AT WHICH OTHER APPRAISER AND 'U......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT