Maud v. Patterson

• Decision Date: 29 March 1898
• Citation: 19 Ind.App. 619,49 N.E. 974
• Parties: MAUD v. PATTERSON.
• Court: Indiana Appellate Court

19 Ind.App. 619

49 N.E. 974

MAUD

v.PATTERSON.

Appellate Court of Indiana.

March 29, 1898.

Appeal from circuit court, Vigo county; David N. Taylor, Judge.

Action by John Patterson against Jacob W. Maud. From a judgment for plaintiff, defendant appeals. Affirmed.

G. W. & J. H. Kleiser, for appellant. Thos. A. Nautz and Geo. I. Kisner, for appellee.

HENLEY, J.

Appellee began this action against appellant upon a common-law award made by an arbitrator under a written agreement wherein matters of difference were submitted by appellant and appellee to arbitration. The complaint was in one paragraph, and discloses the following facts, upon which the action is based: It is alleged that the parties to this action were at certain times partners engaged in the grocery and produce business; that afterwards they, by agreement, dissolved said partnership, and were unable to effect a satisfactory settlement of the partnership accounts between themselves; that they then agreed that one B. Holmes should select a competent accountant, whose duty it should be to adjust all of their accounts, and report the result of the same to these parties; that each party would abide by the said report; and they agreed to hold themselves firmly bound to each other in the sum of $500 damages for the faithful performance of the award of the accountant,-all of which agreements and stipulations between said parties were reduced to writing, and signed and sworn to by both appellant and appellee. The written instrument is made a part of the complaint. According to said agreement, the said Holmes selected one Roswald G. Wheeler, an expert accountant, to adjust the said accounts, which the said Wheeler proceeded to do, and found that appellant was indebted to appellee in the sum of $241.50, and the said Wheeler made a verbal report to that effect to both parties, as per agreement, and that afterwards the said Wheeler made a written report of the facts as ascertained in adjusting the said accounts, which written report he signed and verified by his affidavit. This written report is also filed with and made a part of the complaint. To the complaint, setting up the facts substantially as above, the court overruled a demurrer, and appellant filed an answer in four paragraphs. A demurrer was overruled to the first and second paragraphs of answer, and sustained as to the fourth. The third paragraph of answer was a general denial. Appellee replied to the first and second paragraphs of answer, putting the cause at issue by a general denial. The cause was submitted to the court for trial without the intervention of a jury. There was a finding for appellee, plaintiff below, and judgment in his favor in the sum of $241.50, being the amount of the award. Appellant moved for a new trial, which was overruled. The errors assigned in this court are (1) the overruling of the demurrer to the complaint; (2) the sustaining of the demurrer to the fourth paragraph of answer; (3) overruling the motion for a new trial. The material allegations of a complaint of the nature of the one in this action are (1) the existence of differences between the parties to the action; (2) an agreement to submit the matters in dispute to arbitration; (3) the substance of agreement of submission if oral, and if written the agreement must be made a part of the complaint; (4) that an award was made in accordance with the terms of said submission; (5) the substance of the award if oral, the award itself or a copy if written; (6) that defendant had failed to abide by or perform such award. We are convinced that the complaint in this cause is sufficient. The award is alleged to have been oral, and the agreement of submission permitted it to so be. The fact that the arbitrator, Wheeler, did afterwards make a written report of the facts as he ascertained them, did not alter or vary his award, made long before, and has no bearing for or against the complaint. An exhibit filed with the complaint does not control or affect the complaint, or aid it in any manner, unless the complaint is founded upon it and it is a necessary part thereof. Wilson v. Vance, 55 Ind. 584;Cress v. Hook, 73 Ind. 177; Briscoe...