Mcmillan v. James

• Decision Date: 20 November 1882
• Citation: 105 Ill. 194,1882 WL 14340
• Parties: DUGALD A. MCMILLANv.EBENEZER JAMES et al.
• Court: Illinois Supreme Court

105 Ill. 194

1882 WL 14340 (Ill.)

DUGALD A. MCMILLAN

v.EBENEZER JAMES et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. J. A. CRAIN, for the plaintiff in error:

The award is void for uncertainty, and because it can not be known thereby whether James is to have the land mentioned in the 17th clause or not. Ingram v. Wetmore, 75 Ill. 31; McDonnell v. Bacon, 3 Scam. 428; Tucker v. Page, 69 Ill. 179; Alfred v. Kankakee R. R. Co. 92 Id. 609.

The bill fixes the character of the money on which interest was allowed, as capital invested, upon which, per se, interest is not allowable. Moss v. McCall, 75 Ill. 190; Tutt v. Lund, 50 Ga. 339; Beachams v. Eckford, 2 Sandf. Ch. 127; 2 Lindley on Partnership, 786.

It was improper to allow interest in the award as to matters in which none was claimed in bill which was referred. Merritt v. Thompson, 27 N. Y. 229; Chase v. Strain, 15 N. H. 538; In re Williams, 4 Denio, 199; Race v. Sullivan, 1 Bradw. 98; Mills v. Hany, 35 Ill. 174; Udall v. Steamship “““ Ohio,” 17 How. 18; Chester v. Lewis, 29 Ill. 503; Prescott v. Maxwell, 48 Id. 83; Herman v. Shrader, 74 Id. 160.

As to the effect of the sale by James after the award but before decree, see Eastman v. Armstrong, 26 Ill. 218; Burnsides v. Potts, 23 Id. 415; Adams v. Bradley, 12 Mich. 349.

Mr. HENRY C. HYDE, for the defendants in error:

Arbitrators being a tribunal of the parties' own selection, every presumption will be indulged to sustain their award. Hadaway v. Kelly, 78 Ill. 286; Burrows v. Guthrie, 61 Id. 70; Darst v. Collier, 86 Id. 96; Henrickson v. Reinback, 33 Id. 299; McDonald v. Arnout, 14 Id. 58.

The award finding these lands partnership property, and partnership liabilities, exceeding $60,000, properly directed a conveyance and sale of them to pay debts of the firm. A court of equity would have done the same thing. Collyer on Partnership, (6th ed.) sec. 383; 3 Kent's Commentaries, sec. 64; Bopp v. Fox et al. 63 Ill. 540; Ruffner v. McConnel, 17 Id. 212; Gudgell v. Pettigrew, 26 Id. 305.

Certainty to a common intent is all that is required under the rule that an award must be certain. Tucker v. Page, 69 Ill. 179; Burrows v. Guthrie, 61 Id. 70.

The clause charging James a certain sum for the premises occupied by him for a saw-mill, is explained by a subsequent direction requiring him to convey the same to the receiver, to be sold with the other partnership property. This shows the charge was for the prior use of the property only.

The complainant is not concluded by stating, as a legal conclusion, that certain payments for the firm were capital invested. His rights will depend upon the actual facts stated. Allen et al. v. Woodruff et al. 96 Ill. 10.

It is objected that no interest could be allowed because not specifically prayed for in the bill. Under the general prayer it could be allowed if justified by the facts stated in the bill. Hopkins et al. v. Snedaker, 71 Ill. 449; Stanley v. Valentine, 79 Id. 544.

As to James' right to subrogation, see Jacques et al. v. Fackney et al. 64 Ill. 87; City National Bank of Ottawa v. Dudgeon, 65 Id. 11; Billings v. Sprague, 49 Id. 509; Phones v. Barber, 49 Id. 379; Kirkpatrick v. Howk, 80 Id. 122; Simpson v. Gardner, 97 Id. 237.

The right of a trustee in equity to be reimbursed, principal and interest, for money voluntarily paid in discharging an incumbrance on trust property, is well settled. Hill on Trustees, (3d Am. ed.) 572; Murray v. De Rottenham, 6 Johns. Ch. 52; King v. Cushman, 41 Ill. 31; Quackenbush v. Leonard, 9 Paige, 334; Draper v. Gordon, 4 Sandf. Ch. 210; McClanahan v. Henderson, 2 A. K. Marsh. 388. If there was anything in the objection that James had put it out of his power to perform the award, by a sale of the property, it should have been raised in the court below to the rendition of judgment on the award, and comes now too late. Duncan v. Fletcher, Breese, 252; Gudgell v. Pettigrew, 26 Ill. 305; Burrows v. Guthrie, 61 Id. 70.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

Ebenezer James and Augustus T. Stelle filed their bill of complaint in the Stephenson county circuit court, against Dugald McMillan, May 22, 1878, praying for a dissolution of the partnership between the parties, an accounting, the appointment of a receiver, and for relief generally. The bill alleged a verbal co-partnership was formed in 1871, between the complainants, who were residents of Wisconsin, where they had been engaged in manufacturing lumber, and the defendant, who was carrying on a lumber yard at Freeport, Illinois, the partnership being formed to do a lumber business at Freeport, and all that was agreed to being, that complainants should each share one-fourth, and defendant one-half, the profits and losses, and defendant to devote his entire time and attention to the business. A receiver of the firm assets was appointed, the defendant filed his answer to the bill, and at the March term, 1880, of the circuit court, the parties agreed to submit the cause to arbitration, and in accordance with their written stipulation the court made an order of reference and submission of the “cause and the matters involved in said suit, the same being for a full and final settlement of the partnership,” to the arbitration of three persons chosen by the parties. The arbitrators made their award on the 4th day of September, 1880, and the complainants filed a copy of the award in the circuit court, at its September term, 1880, and at the December term, 1880, moved for judgment on the award, and the defendant filed objections. The motion was heard at the March term, 1881, and the defendant's objections were overruled, and a decree rendered upon the award. Defendant brought this writ of error to reverse the decree.

The question which is presented is upon the sufficiency of the objections to the entry of judgment on the award. There is no pretense of any fraud or misconduct whatever in respect of the making of the award.

There were several specific objections to the award filed in the court below, one of which was, that the 17th clause of the award is indefinite and uncertain. That clause is as follows:

“17. That the two-thirds (2/3) interest in the land occupied by Ebenezer James for his saw-mill, be charged to him at $10 per acre,--descriptions and acres being as follows: The undivided two-thirds (2/3) of lot two (2), section six (6), town forty-one (41) north, range 15 west, containing forty-six (46) and 10/100 acres, according to government survey, and amounting to $307.33.”

It is said to be uncertain whether James is to have title to the land described in this clause at $307.33, or whether that sum is to be charged to James for the use of the land. Reading the clause by itself does raise a doubt in this respect. This two-thirds interest was the interest of the partnership in the land, the title standing in the names of James and McMillan, one-third in each, in trust for the partnership, the other one-third being owned by one McArthur. The next following clause in the award finds that the partnership do not own any of the improvements on the land mentioned in clause 17. By the 19th and 20th clauses of the award both the defendant and James are ordered to convey all partnership lands, including said lot 2, to the receiver, and he is ordered to sell the same for partnership purposes. This seems to clear up the uncertainty there is in clause 17,--whether James is to have the title to the 46 10/100 acres described therein. Taking the whole award together, then, it would seem to show that this tract was not to be conveyed to James, and he have title to it, but that it was to be conveyed by James and McMillan to the receiver, to be sold by him for partnership uses, and that the construction should be that this charge of $307.33 against James was for the use and occupation of the land. An award being the judgment of a tribunal of the parties' own choosing, should be liberally construed to sustain it. Henrickson v. Reinbeck, 33 Ill. 302.

The affairs of this partnership were very extended and complicated. The award must have been the result of a long and laborious investigation. Counsel say several weeks were spent in hearing evidence. This 46 acres of land was but one tract of a quantity of some 14,000 acres of pine lands in which the partnership had a two-thirds interest, and it would be a matter of regret if the whole award should have to be set aside for the uncertainty which appears in this comparatively insignificant portion of it. We can not think that the legal rule as to the certainty of awards requires that this award should be set aside upon the ground of this objection, and we hold it insufficient.

The 5th and 6th clauses of the award are:

“5. That Ebenezer James, individually, has paid on lands belonging to the firm the sum of $20,301.60, being the lands described in the bill.

6. That Ebenezer James paid the above mentioned amount to protect partnership property, and is entitled to interest thereon from the time of making said payments, at the rate of seven per cent per annum, which, up to the date of this finding, amounts to $8044.”

Another of the objections is to this allowance of interest. It is claimed that this interest was not involved in the suit, and so was not a subject of the submission which was made to the arbitrators. The bill sets out that the landed property which is found by the 5th and 6th clauses of the award to belong to the firm, was purchased by and for the firm in 1872, of the vendors, Dean and Decker, for $41,315; that the lands were pine lands, situate in the State of Michigan; that the legal title thereto was taken in the names of James and defendant, McMillan, as tenants in common, but that they held the same as trustees of the firm; that...