Greer v. Canfield

• Decision Date: 08 November 1893
• Citation: 38 Neb. 169,56 N.W. 883
• Parties: GREER v. CANFIELD.
• Court: Nebraska Supreme Court

38 Neb. 169

56 N.W. 883

GREER

v.CANFIELD.

Supreme Court of Nebraska.

Nov. 8, 1893.

Syllabus by the Court.

1. A verbal submission of the matters in controversy between parties who appear voluntarily, and testify themselves, and produce witnesses in support of their respective claims, will, if fairly conducted, be sustained after the making of the award.

2. The fact that neither the witnesses nor the arbitrators were sworn, when no objection is made on that ground, will not invalidate the award.

3. The claim that the award was made on Sunday, held not sustained by the proof.

4. Where matters in controversy are submitted to arbitrators, proof taken, and an award made, and an action brought thereon, an answer which fails to show that the arbitrators exceeded their powers, or did not consider some of the matters submitted, or did an injustice to the defendant, fails to state a defense.

Error to district court, Johnson county; Broady, Judge.

Action on an award by John Canfield against John C. Greer. Plaintiff had judgment, and defendant brings error. Affirmed.S. P. Davidson, for plaintiff in error.

D. F. Osgood, for defendant in error.

MAXWELL, C. J.

This is an action upon an award. There are three defenses set up in the answer: (1) A denial that arbitrators were appointed, or that the submission was in writing; (2) that the award was made on Sunday; (3) that an uncle of the defendant was officious in conference with the arbitrators. On the trial of the cause the jury returned a verdict in favor of the plaintiff below in the sum of $468.67, on which judgment was rendered. It is doubtful if the answer states any defense, but, as no question is raised upon it, the court will treat it as sufficient. The mode of submission is stated by O'Connell, one of the arbitrators, as follows: “Question. Did they state, or did any one state in their presence at that time, that you were to decide all matters of difference between them? Answer. Why, I don't know as those words were used, but that is the way I understood it. Q. As a matter of fact you did not undertake to go through their whole business transactions? A. We undertook everything they laid before us. Q. Their whole business transactions you did not go through? A. I suppose they laid all before us that they wanted us to settle, and we passed on all, except a few things spoken of in this Exhibit A. Q. No articles mentioned that you were to settle? A. Not at that meeting. After we began, Hedrick wrote down notes and goods and horses, etc., and he wrote them down on a piece of paper. We got to work; took the first item,--such a note. If they both agreed on that, we took that. Then there was several articles they could not agree on, and one said one thing and another another, and we would have to have evidence. We took off everything they agreed on, and there was things they didn't agree on, and we decided them. Q. You never gave a written decision other than that? A. That is all the decision we ever made. I believe we wrote two,--one for each party. Q. You never decided each one of these items, and notified them? A. No, sir; but we did settle each item. There would be such a note they agreed upon,--for instance, the price of a horse they could not agree on; and then there was several other things. We decided these things separately, and then added up the amount, and that is the way we arrived at the conclusion. Q. You never notified Greer? A. No, sir; we didn't. Q. Now, as a matter of fact, didn't Greer ask you for an itemized list of them? A. I met him Sunday afternoon, and there was one account he asked me how we arrived at. I said, ‘If there is any particular thing, I think I can remember it.’ There was some $2,000 John collected, and he asked what commission we allowed. I said we allowed him 5 per cent. He wanted 15 per cent., and had that charged up; and he found a good deal of fault with that, and appeared wrathy, and he wanted an itemized statement. Q. You got pretty wrathy yourself? A. Well, slightly. I says, ‘If there is any made, Hedrick will make it.’ I told Hedrick, and he didn't make it; at least he told me he didn't. Q. Greer asked an itemized account of your decision? A. Yes, he did. Q. And you refused to furnish it? A. Well, I didn't furnish it. Q. And Hedrick didn't furnish it? A. I think not; at least he told me he hadn't. Q. By the Court: You have been county judge in this county, have you? A. Yes. Q. That was back in roller skate time was it? A. Yes. Q. By Mr. Davidson: When you began this first session of this arbitration, did you and Mr. Hedrick take any oath? A. No, it was all irregular, as far as that was concerned. I spoke about that. We went over as friends; just as a court and jury; friendly until the thing was over. Q. You never took any oath? A. No, sir; we never administered an oath to the witnesses; we just heard their story, and tried to use common sense in deciding it.” Mr. Greer testifies on the same subject: “Question. You say at the time you first met it was agreed that all the difference between you and Canfield should be settled by the arbitrators? Answer. Yes. Q. Were you present at the time of this debtor and credit business? A. Yes. Q. That was especially spoken of at that time as to being settled? A. Yes. Q. Was there any items spoken of at that time especially to be settled by them? A. If anything come up I had not credited Canfield with, I told them if he would bring evidence there I would allow on the statement. I thought there was some items I had not credited him with, as I didn't keep a correct account. I would allow all these accounts, and if I owed him anything I would pay it, that was not on the statement. Q. That was said there at that time, was it? A. Yes. Q. They were to...