Koerner v. Leathe

• Decision Date: 09 May 1899
• Citation: 51 S.W. 96,149 Mo. 361
• Parties: Koerner v. Leathe, Appellant
• Court: Missouri Supreme Court

51 S.W. 96

149 Mo. 361

Koerner v. Leathe, Appellant

Supreme Court of Missouri, Second Division

May 9, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Kiein Judge.

Affirmed.

R. M Nichols for appellant.

(1) The court erred in refusing a jury. R. S. 1889, sec. 405; Earl v. Hurt, 89 Mo. 263; Benoist v Thomas, 121 Mo. 664; Gunn v. Thurston, 130 Mo. 339; Rand & McNally v. Wickham, 60 Mo.App. 44; Durene v. Gitchel, 55 Me. 241; Goodwin v. Miller, 32 Ind. 419. This is an action "for the recovery of money," and no less such because the verdict has been given. Experience has shown that this award or "verdict" might be tainted by either of the imperfections enumerated in the statute and for that reason a petition charging any of these grounds may be engrafted upon this award or verdict which of necessity must always raise an issue of fact. (2) The contract of submission in the case at bar is general in its terms, and extraneous evidence is admissible to show what was intended to be passed upon by the arbitrators. Squires v. Anderson, 54 Mo. 193; Hinkle v. Harris, 34 Mo.App. 232; Lorey v. Lorey, 60 Mo.App. 417. (3) Nothing is included in the submission but the subject-matter involved in it. And if an arbitrator embraces in his award, matters not submitted, and includes the result in a single conclusion, so as to render it impossible to separate the matters referred from those which have not been, the award is void. Railroad v. Meyers, 59 U.S. 252; Squires v. Anderson, 54 Mo. 193; Ellison v. Weathers, 78 Mo. 115; Frost v. Smith, 30 Ky. 124; Thrasher v. Haynes, 2 N.H. 429. (4) It is a valid objection to an award, that it does not precisely distinguish between the moneys which were to be paid by him in his representative character and those for which he is personally bound. Lyle v. Rodgers, 5 Wheat. 394; Hoffman v. Hoffman, 26 N. J. L. 176; Crawford v. Berry, 11 Gill & J. 310; Dorsey v. Dorsey, 11 Gill & J. 299; Davis v. Dyer, 54 N.H. 146.

Kehr & Tittmann for respondent.

(1) The court did not err in refusing appellant a right of trial by jury on his motion to vacate the award of the arbitrators. R. S. 1889, secs. 415, 417, 2131 and 2132; Conran v. Sellew, 28 Mo. 320; Wendover v. Baker, 121 Mo. 273; Gunn v. Thruston, 130 Mo. 339; Beattie v. David, 40 N. J. L. 102; Milner v. Noel, 43 Ind. 324; Spencer v. Curtis, 57 Ind. 221; Boyden v. Lamb, 152 Mass. 416. (2) In order to make an objection to an arbitrator effective, it must be made as soon as the fact of his incompetency becomes known to the party objecting. Ledlie v. Gamble, 35 Mo.App. 355; Leitch v. Miller, 40 Mo.App. 180; Indiana Ins. Co. v. Brehm, 88 Ind. 518; Seaton v. Kendall, 61 Ill.App. 289; Hubbard v. Hubbard, 61 Ill. 328; Anderson v. Burchett, 43 Kan. 153; Pearson v. Barringer, 109 N.C. 398; Morse on Arbitration, p. 105; Fox v. Hazleton, 10 Pick 275; Noyes v. Gould, 57 N.H. 20; Robb v. Brachmann, 38 Ohio St. 423; Brown v. Leavitt, 26 Me. 251; Dougherty v. McWhorten, 7 Yerger 239. (3) Objections to an award must be apparent on its face. An award will not be set aside upon motion or vacated for any mistake of law or fact, nor because of the reception of illegal evidence that does not appear on the face of the award and no extrinsic facts will be received in evidence to impeach it. Valle v. Railroad, 37 Mo. 445; Taylor v. Scott, 26 Mo.App. 251; Todd v. Barlow, 2 Johns. Ch. 551; Ebert v. Ebert, 5 Md. 353; Dorsey v. Jeoffrey, 3 Har. & M. 121; Lewis v. Wildman, 1 Day 153; Brown v. Green, 7 Conn. 536; Wheatly v. Martin, 6 Leigh 62; Head v. Muir, 3 Rand. 122; Bumpbars v. Webb, 4 Port. (Ala.) 65; State v. Merchants' Exchange, 2 Mo.App. 101. (4) The agreement for submission between the arbitrators recognizes a primary liability on the part of appellant to the respondent with respect to all matters included in the agreement. The submission did not require a separate award for each matter or of one or more of them. Therefore, an award of a gross sum is a mutual, final and definite award of the subject-matter between the parties and is good. McClure v. Shroyer, 13 Mo. 104; Stearns v. Cope, 109 Ill. 340; Vannah v. Carney, 69 Me. 221; Karthaus v. Ferrer, 1 Pet. 228; Heckers v. Fowler, 2 Wall. 123; Emery v. Hitchcock, 12 Wend. 156; Wood v. Railroad, 8 N.Y. 160; Gill v. Bickel, 30 S.W. 919; Call v. Ballard, 65 Wis. 187; Strong v. Beroujon, 18 Ala. 168. (5) Moreover, it would have been useless to make separate findings in the award, because they could, under no circumstances, be binding on either the Crown Coal & Tow Company, or the St. Louis, Belleville & Southern Railway Company, because neither of them was party to the arbitration. Separate findings as to the amounts due by the appellant to respondent on account of these respective companies, could not form the basis of an action by appellant against them, and would not be res adjudicata as against them. The rights of appellant against these companies was not the subject of inquiry. Karthaus v. Ferrer, 1 Pet. 228; Gill v. Bickel, 30 S.W. 919; Goetchins v. Hodges, 50 Ga. 603; Bassett v. Bassett, 10 N.H. 64.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

The parties to this action entered into an agreement of arbitration in accordance with the statutes of this State providing that the award should be made a rule of court.

The controversy arose over the claim of the plaintiff against defendant for compensation for legal services rendered by plaintiff to defendant and certain corporations largely owned and managed by defendant.

The arbitrators selected were Messrs. Given Campbell, Samuel N. Holliday and John J. O'Brien. They were first duly qualified, and upon due notice held their sessions, heard the evidence and rendered their award for plaintiff. All the statutory steps were taken, to have the award confirmed by the judgment of the court.

Upon receiving notice the defendant appeared and moved the court to vacate the award, on four several grounds: First, the partiality of Mr. O'Brien, one of the arbitrators, for John M. Holmes, who was alleged to have an interest in the award to Koerner; second, because of the failure of the arbitrators to designate the amount due from defendant to plaintiff for each of the said corporations, the Belleville, St. Louis & Southern Railroad Company, and the Crown Coal & Tow Company, but instead found a lumping sum total for all of said services; third, in not allowing defendant a credit for cash paid; fourth, in exceeding their powers in acting on matters not submitted to them or contemplated by the agreement of submission to arbitration.

That motion was overruled and defendant appeals. The alleged errors will be examined in the order of their assignment.

I. When the motion to vacate for the causes already noted, was filed, defendant demanded that the issues thereby raised should be submitted to a jury. The court refused this request and defendant excepted and now urges this as a ground for reversal.

When a suitor demands a course of procedure on the ground that it is secured to him by the Constitution, it behooves the court to give the claim a careful consideration, however unfounded it may appear at first blush. Such is the claim of defendant in this case.

That an action at law might be maintained on a common law award or a refusal to abide by such an award will not be questioned. And in such cases the questions of fact were and are triable by a jury. So it was held in Duren v. Getchell, 55 Me. 241, and Goodwine v. Miller, 32 Ind. 419, cited by defendant.

But when as in the case at bar the submission is under a statute which authorizes parties to submit their differences to arbitrators and they agree that in accordance with the statute the award may be made a rule of the circuit court, it is obvious the parties have waived their common law right to a jury trial and have selected another and different tribunal.

This court, as early as Vaughn v. Graham, 11 Mo. 575 (1848), held in an opinion by Judge Scott that by the common law "an award could not be set aside for any cause in a court of law;" that the relief was in equity prior to the enactments of the statutes governing awards. It is quite generally held that the statutory provisions are not exclusive but that the aggrieved party may still resort to equity. [Hyeronimus v. Allison, 52 Mo. 102.] But wherever the point now raised has been adjudicated, the ruling has been that on the issue of vacating or setting aside the award for fraud or partiality or on the statutory grounds resort must be had to the court, and on the issue thus raised the parties are not entitled to demand a jury. Thus in Beattie v. David, 40 N.J.L. 102, the Supreme Court of New Jersey said: "Where, however, as in this case, the parties, by agreement, consent that the cause be referred to a referee chosen by themselves, and make that consent a rule of court, they can not enter a dissent to the report and demand a trial by jury. They have chosen their own tribunal and must abide by the decision. The court will, however, control the report as the verdict of a jury would be."

In Goodwine v. Miller, 32 Ind. 419, the Supreme Court of Indiana, while holding that an action at law might be maintained on a common law award and was triable by a jury was careful to say "this was an action on a common law award and not a rule of court to show cause why judgment should not be rendered thereon." Subsequently, in Milner v. Noel, 43 Ind. 324, 327, upon a rule to enforce the award, the appellant demanded a jury which was denied. The court says: "We are not aware of any rule of law by which the party excepting to an award in cases like this can have a trial by jury. In Goodwine v. Miller, 32 Ind. 419, which was an action on a common law award, ...