Hooper v. Brinson

• Decision Date: 31 December 1847
• Citation: 2 Tex. 185
• Parties: RICHARD HOOPER v. MATTHEW BRINSON
• Court: Texas Supreme Court

2 Tex. 185

RICHARD HOOPER

v.MATTHEW BRINSON

Supreme Court of Texas.

December Term, 1847.

Writ of Error from Shelby County.

The validity of a verbal consent, entered of record, to arbitrate a cause which was duly referred under such consent, and which was valid under the law then existing, is not affected by a subsequent law requiring agreements to arbitrate to be reduced to writing.

Where the record does not show, affirmatively, that the parties had notice of the time and place of meeting of the arbitrators, but no exceptions were taken thereto in the court below, the appellate court will presume that such notice had been duly given. [ Post, 468; 11 Tex. 404;29 Tex. 141.]

This was a suit brought in 1841, by the plaintiff against the defendant, on a written contract for the hire of a slave. The defendant answered by alleging payment and set-off, and filed interrogatories to be answered by the plaintiff in the court below, which was done. There were several continuances, two of which appear to have been entered under a consent of the parties to arbitrate, without naming the referees. At the October term, 1845, the case was referred by the parties to Moore and Lister. At the October term afterwards, “it was agreed that if the award should come into court,” during that term, it is presumed, “it should be received; if not, it should be referred to Lister and Echols, who are to arbitrate it.”

At the April term, 1847, the following entry appears in the case:

“By consent of parties at the last term of the court, the settlement of this cause was left to referees, whose award was to be the judgment of the court, which is as follows:

Whereas, we, Thomas H. Lister and William F. Echols, were appointed at the last term of the honorable district court, holding sessions for the county aforesaid, to settle a matter of dispute and controversy in the above entitled cause, then pending in the said county; therefore, be it known, that we, Thomas H. Lister and Wm. F. Echols as aforesaid, after a due and full examination of the papers presented to us in the said cause, and which papers we return with this award, and carefully examining all the testimony therein contained; know, therefore, that we, the arbitrators as aforesaid, do award, arbitrate and determine by these presents, that the said plaintiff, Matthew Brinson, do recover from the said defendant, Richard Hooper, the sum of four hundred and thirty-three dollars and thirteen cents principal, and the further sum of two hundred and fifty-three dollars six and one-quarter cents interest, and all costs of suit.

+------------------------+
                ¦(Signed)¦T. H. LISTER,  ¦
                +--------+---------------¦
                ¦        ¦W. F. ECHOLS.” ¦
                +------------------------+
                

The record then proceeds: “And now comes the plaintiff by his attorney, and agrees to a stay of execution for three months. It is therefore ordered and considered that the plaintiff, Matthew Brinson, have and recover of the defendant, Richard Hooper, his debt, interest, etc., and all costs herein expended, and that execution issue thereon three months after the rendition of this judgment.”

No objection appears to have been made to the award at the time it was returned, and none to the judgment, nor was any appeal taken. The writ of error herein was sued out six months after the rendition of judgment on the award.

J. Pickney Henderson, for defendant in error.

The principal ground of error assigned is, that the agreement to arbitrate was not reduced to...