Jensen v. Deep Creek Farm & Live Stock Co.

• Decision Date: 09 December 1903
• Docket Number: 1481
• Court: Utah Supreme Court
• Parties: JOSEPH M. JENSEN, Respondent, v. THE DEEP CREEK FARM AND LIVE STOCK COMPANY, a Corporation, A. v. TAYLOR, JOSEPH E. TAYLOR and DON C. TUFTS, Appellants

74 P. 427

27 Utah 66

JOSEPH M. JENSEN, Respondent, v. THE DEEP CREEK FARM AND LIVE STOCK COMPANY, a Corporation, A. v. TAYLOR, JOSEPH E. TAYLOR and DON C. TUFTS, Appellants

No. 1481

Supreme Court of Utah

December 9, 1903

Appeal from the Third District Court, Salt Lake County.--Hon. John E. Booth, Judge.

Action on a bond to recover damages awarded by arbitration. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

Albert W. Casey, Esq., for appellants.

Ogden Hiles, Esq., of counsel.

An award must decide all the matters submitted, if it does not it is void in toto.

The arbitrators have no power to decide any matter unless they decide all. If they stop short and omit any the power fails and also the consideration on which the parties entered into the contract of submission Morse on Arb. & Award, 343, and cases cited; Randal v. Randal, 7 East. 81 ; McNear v. Bailey, 18 Me. 251; Archer v Williamson, 2 Har. & Gill (Md.) 82; Comer v Thompson, Admr., 54 Ala. 265. And see particularly: Muldrow v. Norris, 12 Cal. 331; Jocelyn v. Donnel and note, 14 Am. Dec. 754; Mitchell v. Stavely, 16 East. 58.

Messrs. Brown & Henderson for respondent.

Messrs. Sutherland, Van Cott & Allison of counsel.

The award is valid as it shows on its face as well as by the evidence introduced that the arbitrators passed on all matters submitted. Thus, it will be seen that the transcript of evidence taken before the arbitrators, showed that all matters were submitted to the arbitrators relating to the controversies that arose over the lease and the complaint and answer in which the corporation was plaintiff. The arbitrators testified to the same effect, and it must be borne in mind that the appellants introduced no evidence whatever to show that all matters which were arbitrated were not submitted to the arbitrators, or to show that the arbitrators did not pass on all matters submitted. In other words, the record is absolutely silent so far as negative testimony is concerned to prove or tend to prove that the arbitrators did not consider and pass upon all matters submitted.

At this point we think it best to go over the law of awards, so far as pertinent to this appeal, as it will tend to point the law and the particular facts. In Stearns v. Cope, 109 III. 340, an award was attacked as being void. On page 347 the court says:

"We fully recognize the rule that where several distinct matters, not consisting of mere money demands, are submitted to arbitration, the arbitrators must consider, and by their award finally settle and dispose of all such matters in difference; and this must appear from the award itself.

"But the rule is to be understood with this qualification; that in order to impeach an award, made in pursuance of a conditional submission, on the ground only of part of the matters in controversy having been decided, the party must distinctly show that there were other points in difference, of which express notice was given to the arbitrator, and that he neglected to determine them." Karthaus v. Ferrer, 1 Pet. 222; Strong v. Strong, 9 Cush. 560; Bowman v. Downer, 28 Vt. 532; Young v. Kinney, 48 Vt. 22; Lamphire v. Cowan, 39 Vt. 420; New York, etc., Co. v. Schneider, 119 N.Y. 475; Ott v. Schroeppel, 5 N.Y. 482; Carsley v. Lindsay, 14 Cal. 390; 2 Ency. Law (2 Ed.), pp. 733-5.

The presumption of law is that the arbitrators have acted upon and adjudicated all matters submitted for decision unless the party complaining shows to the contrary by competent evidence. Strong v. Strong, 9 Cush. 565; Karthaus v. Ferrer, 1 Peters 227; Carsley v. Lindsay, 14 Cal. 394-5; New York, etc., Co. v. Schneider, 119 N.Y. 479-80, 481; Young v. Kinney, 48 Vt. 22.

The transcript of evidence taken before the arbitrators and the evidence of the arbitrators were admissible for the purpose of showing that all matters submitted to the arbitrators were adjudicated.

The testimony of the arbitrators and the transcript of evidence taken on the trial before the arbitrators were properly admissible for the purpose of identifying the matters submitted and to prove that the arbitrators acted upon them. This testimony was not introduced for the purpose, neither did it have the effect of impeaching, contradicting or controlling the award. We recognize the rule of law that evidence is not admissible to impeach, vary or contradict the award, but it is proper to introduce evidence to show what points were submitted and decided, and to show that all points submitted were decided. No evidence was introduced in this case either to explain, contradict, vary, add to, or subtract from the award. The testimony was merely introduced to show that all matters submitted were adjudicated --counsel for appellants are entirely in error in saying that any evidence was introduced either to explain, vary, add to, change, modify or alter the award of the arbitrators. Testimony was introduced to show that all matters submitted were adjudicated, and evidence was introduced to show what was submitted, so that it would appear affirmatively that all such matters were adjudicated. The authorities establish these propositions overwhelmingly.

In Buck v. Spofford, 35 Me. 526, testimony was introduced to show that the arbitrators passed upon everything submitted. The court on pages 532-3, said:

"It is insisted that the testimony of the two referees is not legally admissible to identify the matters submitted, and to prove that they acted upon them. Objection can not prevail. Woodbury v. Northy, 3 Greenl. 85; Bixby v. Whitney, 5 Greenl. 192; 2 Greenl., Ev., sec. 78. The authorities cited do not decide otherwise. They do decide that a written submission or award can not be explained or varied by parol testimony." Evans v. Clapp, 123 Mass. 165; Brown v. Brown, 4 Jones (N.C.) 123; Hale v. Huse, 10 Gray 99; Stone v. Atwood, 28 III. 30; Sperry v. Ricker, 4 Allen 19-20; Shackelford v. Purket, 12 A. D. (Ky.) 426; Carter v. Shibles, 74 Me. 273; Walker v. Walker, Winston's Law (N.C.) 259; Osborne v. Calvert, 83 N.C. 365; Burchell v. Marsh, 17 How. (U.S.) 350; 2 Greenl. on Ev. (16 Ed.), sec. 78 and notes; Allen v. Miles, 4 Har. (Del.) 234; Stevens v. Gray, 2 Har. (Del.) 347; French v. New, 20 Barb. 481.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

--It appears from the record in this case that on May 10, 1900, the plaintiff entered into an agreement in writing with the defendant company to lease and deliver to the company a certain number of sheep, of a certain kind and description, for a term of three years. The company, according to the terms of the agreement, was to pay as rental for the sheep annually a certain number of pounds of wool; and at the expiration of the term the same number of sheep, with a specified number of the increase, were to be returned to the owner. At the time of the making of the lease the defendant company, as principal, and the other defendants, as sureties, made and executed a bond to the lessor, in the sum of $ 20,000, for the faithful performance by the lessee of its part of the contract of lease. It appears the sheep were delivered by the lessor and accepted by the lessee about the sixth day of December following, and, under the terms of the lease the lessor was given the right, under certain circumstances, to retake the sheep into his possession. Thereafter, by complaint sworn to June 24, 1901, the lessee brought an action against the lessor for damages in the sum of $ 19,700 for breach of the lease. In the complaint in that action it was charged that the sheep delivered were not in good condition; that a large number were old and diseased; that a large number of wethers and lambs were deceitfully put into the herd by the lessor, instead of ewes; that a certain number of rams were delivered by the lessor to the lessee as a separate transaction from the lease; and that these were diseased, and communicated the disease to other sheep in the herd. To that complaint, after admitting the lease, and delivery of the sheep in pursuance thereof, the defendant lessor entered a general denial as to all other allegations. Thereafter, on August 24, 1901, while the suit was pending, the lessor and lessee, for the purpose of adjusting all their differences and claims resulting from the lease, and with the approval of the sureties on the lessee's bond, entered into an agreement of arbitration, which, so far as material here, reads:

"Whereas by contract of lease, . . . the said Jensen did deliver and lease certain sheep to the said Deep Creek Farm and Live Stock Company; and, whereas with reference thereto, various controversies have arisen which have resulted in litigation, as appears by copy of complaint and answer hereto annexed, in the suit brought by the said Deep Creek Farm and Live Stock Company against said Jensen in the Third Judicial district court in the State of Utah, in and for the county of Salt Lake:

"Now, therefore, it is hereby agreed that the differences between said parties under said lease shall be submitted and referred to John C. Sharp and Charles R. McBride as arbitrators, and the said parties hereby agree to abide by such award as may be made by said arbitrators, and that the judgment and award by the said arbitrators shall be binding upon each of the parties to this agreement.

"It is further understood and agreed that whereas in said suit the said Jensen has demanded his said sheep under the terms of said lease, and said company has agreed and is ready and willing to deliver the same, the said Jensen shall take and receive all of the said sheep delivered to said company under said lease which said company may now have in its possession but such return of said sheep to said Jensen shall not in any manner...