Mathews v. Miller and Quarrier.

• Decision Date: 25 April 1885
• Citation: 25 W.Va. 817
• Court: West Virginia Supreme Court
• Parties: Mathews v. Miller and Quarrier.

25 W.Va. 817

Mathews

v.Miller and Quarrier.

Supreme Court of Appeals of West Virginia.

Submitted January 21, 1885.

Decided April 25, 1885.

(Snyder, Judge, Absent.)

1. A statutory award must be regarded as complete, when it is signed and published and ready to be returned to court, (p. 823)

Counsel below.

2. The general powers of a court of chancery over statutory awards

are expressly recognized in the statute providing for such awards, (p. 823.)

3. When a statutory award is made and is ready to be returned to

court, the party, against whom the award is, may bring his chancery suit to set it aside, (p. 823.)

4. Where the submission requires that the award should be made

within a specified time, and both parties long after the said time has expired appear before the arbitrators and argue the case, the objection to the award, on the ground that it was not made within the time specified, is waived, (p. 823.)

5. It is not fatal to an award in writing othewrise good, that it is

not under seal, when the submission required it to be made under seal. (p. 824.)

6. A written opinion on the law of the case prepared by one of the arbi-

trators and concurred in by the other and referred to in the award must be regarded as a part thereof, and it must be taken from the opinion, that the arbitrators intended to decide on the law of the case and to decide the case according to law. (p. 828)

7 When the arbitrators intend to decide the case according to law but clearly and palpably mistake the law their award will be set aside, but if they mistake the law on a doubtful point, although this Court would have decided the law differently, the award will not for this reason be set aside, (p. 828.)

The opinion of the Court contains a statement of the facts of the case.

J. H. Holt and Payne $ Green tor appellant. John H. Holt:

I. The court below had equity jurisdiction over the award. Code of W. Va. 186S, p. 509, sec. 4; Wheeling Gas Company v. Wheeling, 5 W. Va 448.

II. It should have exercised that jurisdiction by Betting aside the award. 1. Because the award was not made and returned until long after the expiration of the time provided in the submission. Morse on Arb. and Award, p. 261; Brown v. Copp, 5 N. H. 223; Hall v. Hall, 3 Conn. 308; White v. Paymn, 10 Yerg. 441. 2. Because it was not returned under seal as required in the submission. Morse on Arb. and Award, p. 261; Marsh v. Parker, 20 Vt. 198. 3. Because the arbitrators, meaning to conform to the law, plainly mistook it as laid down in Hall v. The Bank of Virginia, 14 W. Va 607, 609, and based their award upon such mistake. Moore v. Luckess's next of kin, 23 Grat. 160; Stone v. Atwood, 28 111. 30; Hewitt v. The State, 14 Am. L. Cas. 259. 4. Because, even if, as the arbitrators found, the sales and assignments under the decree of the Federal Court were involuntary, still they were good as far as the Farmers' Bank of Virginia and the trustees were concerned, and could have been questioned only by the creditors of the branch bank in West Virginia. The appellees were not such creditors.

III. The assignment to the appellant was broad enough to include the receipt given by the appellees to the assignor for the notes, and entitled him to the remedies of the assignor against the appellees. Mchaffyv. Share, 2 Pa. (P. & W.) 361; Grocers' National Bank v. Clark, 48 Barb. 26; Purple v. Hudson R. R. Co. 4 Duer (N. Y) 74; Weire v. Davenporte, 11 Iowa, 49.

IV. The statute of limitations was no defence. Roberts v. Armstrong, 1 Bush (Ky.)263; Denton v. Embury, 10 Ark. 228; McDowell v. Potter, 8 Pa. St. 189.

W. A. Quarrier for appellees.

Johnson, President-

The defendants, attorneys at law, executed their receipt to Thomas Mathews, cashier ot the Farmers' Bank of Virginia, on June 7, 1867, for certain claims therein specified, which they received for collection. The money was collected on one note and, less fees, was paid over; and suit was brought on the other two. After the suits were brought, the defendants threatened to defend them, on the ground that they were payable in Confederate money. The notes were executed within the Confederate lines payable to a bank created by one of the Confederate States, and executed by officers in the Confederate army. Upon the promise of payment if suits were dismissed, Miller, who was the acting attorney, dismissed them, thinking that if the defendants did not keep their promise, he still could sue. He did not bring suit, until the Code was adopted, which barred the suits. This was occasioned by the delay in publishing the Code. His claim is, that he pursued the course he did, in order to secure the payment of the notes without presenting any difficulty about Confederate relations, and so avoid any plea or defence on that ground, which was continually threatened by the defend- ants. The parties entered into an agreement to submit to W. S. Laidley and E. B. Knight the final settlement and decision of the said dispute as to the obligation and liability of the said Miller and Quarrier as attorneys at law to pay to the said Mathews the said notes and interest thereon. The award was to be made under their hands and seals on or before the-day of-, 1876. Mathews, as the record

shows, filed a brief before the arbitrators, dated July 28, 1877, and still another dated March 15, 1878. The award was for the defendants, and made on August 8, 1879. It is not under seal and was not returned to the Court. It is as follows:

" Alexander F. Mathews vs.

" S. A. Miller and W. A. Quarrier.

" The controversy between the above parties having been by written agreement referred to E. B. Knight and W. S. Laidley, arbitrators, and the same having been made and determined, they do find and make the following award That upon consideration of the evidence adduced, and upon the argument of counsel, the said arbitrators, E, B. Knight and W. S. Laidley, for reasons assigned in writing, find for the defendants, Miller k Quarrier, and determine that there is no liability on the defendants to the plaintiff.-

" E. B. Knight, W. S. Laidley."

The written opinion, which preceded the award, wras pre pared by W. S. Laidley and was signed by him afid E. B. Knight on the 8th day of August, 1879, and had the following endorsement thereon: "To W. S. Laidley, Esq.: I have examined the authorities cited by the parties on the point suggested and believe your conclusion is correct, and that the award should be made accordingly. Will you draw it?

" E. B. Knight."

The legal opinion is as follows:" The first question that arises is: Is there any liability on the defendants to the plaintiff? Miller & Quarrier gave the receipt to the cashier of the Farmers'Bank of Virginia. Has the title acquired by the plaintiff given him a right to call upon the defendants to pay him? The plaintiff insists that the question does not arise upon the arbitration, or the paper should or might have been prepared to meet it. But it seems to me, it does fairly arise upon the paper, as submitted to us, and the point has been raised and we must decide it. The case referred to in 3 W. Va. 309, determines that a voluntary assignment, made in another State, of a debt due from a citizen in this State to a citizen of another State, passes the debt to said assignee, but otherwise as to an involuntary or coercive assignment. And in 7 W. Va. 31, the case of this bank in controversy, and ot the assets in controversy, it was held that the bank had aright to make the assignment it made on January 19, 1867, and that the assignment was valid and effectual for that purpose. In 9 W. Va. 424, in the case ot Harrison executor, against the said bank, it is held that the deed of trust executed by said bank on June 19, 1867, to its trustees, whereby it conveyed its assets, some ot which were at Lewisburg, was voluntary and not compulsory, and that it passed the assets at Lewisburg to the trustees for the use of the creditors. The said court further held that the appellant's title to the assets were inferior to those of the trustees for the bank. As to Thomas Mathews, they merely refused to disturb the decision of the court below, as he had all he claimed, and was the appellee, but did not decide that his title was good or bad, and expressly reserved the rights of the trustees and creditors of said bank from the effect of said decision. To my mind it is clear, that the defendants are not liable to the plaintiff, because the title to the notes, at the time they were placed in the hands of the defendants, was in Robinson and Goddin, trustees, and that the effect of the sale of said assets under the decree ot the United States district court in Virginia could not affect the assets out of Virginia and in West Virginia, and it is only through this decree, and assignments under it, that the plaintiff claims, and there is no evidence of any transfer of the title of said assets by the said trustees, Robinson and Goddin."

The plaintiff, Alexander F. Mathews, filed his bill in September, 1883, in the circuit court of Kanawha county, setting forth a part ot the above facts and the several assignments from W. B. Isaacs & Co., the purchasers under the sale made under the decree of the Federal court in Richmond, dated December 23, 1878, to Thomas Mathews, and the assignment from Thomas Mathews to A. F. Mathews dated October 81, 1873, sets out the proceedings before the arbitrators and the opinion and award, and charges that such paper returned as an award is ineffectual as such, invalid and inoperative, and must be set aside, annulled and declared void, because, first, a time was named in the submission, within which the award was to be made, and it was not made until long after the time had elapsed and after the authority of the arbitrators had ceased; second, because the submission called for an award under seal, and the writing delivered as an award is not under seal; third, and mainly, because the arbitrators intending to decide the case according to and in...