Neely v. Buford

• Decision Date: 31 October 1877
• Citation: 65 Mo. 448
• Parties: NEELY, APPELLANT v. BUFORD.
• Court: Missouri Supreme Court

65 Mo. 448

NEELY, APPELLANT

v.BUFORD.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Schuyler Circuit Court.--HON. JOHN W. HENRY, Judge.

Higbee & Shelton, for appellant, cited Bennett v. Russell, 34 Mo. 528; Allen v. Hiller, 8 Ind. 310; Richards v. Brockenbrough, 1 Rand. 449; Coupland v. Anderson, 2 Call 106; Armstrong v. Armstrong, 1 Leigh 491; Archer v. Williamson, 2 Har. and G. (Md.) 67; Karthaus v. Ferrer, 1 Pet. 222; Fryburg Canal v. Frye, 5 Maine 38; Roloson v. Carson, 8 Md. 208; Strong v. Strong, 9 Cush. 560; Ott v. Schroeppel, 5 N. Y. 482; Kendrick v. Tarbell, 26 Vt. 416; Dolph v. Clemens, 4 Wis. 181; Green v. Franklin, 1 Texas 497; Merritt v. Merritt, 11 Ill. 565; Bancroft v. Grover, 23 Wis. 463; Pick v. Hydraulic Co. 27 Wis. 433; 1 Abb. U. S. Dig. 681, pl. 1745, 1746. Tomlinson v. Hammond, 8 Iowa 40; Small v. Trickey, 41 Me. 511; Cutting v. Carter, 29 Vt. 72; Burchell v. Marsh, 17 How. 344; Flatter v. McDermitt, 25 Ind. 526; Smith v. Minor, 1 N. J. L. 16; King v. Cook, T. U. P. Charlton (Ga.) 287; Haywood v. Harmon, 17 Ills. 377.

Ellison & Ellison, for respondent, cited Morse on Arb. 126, 127. Jenkins v. Liston, 13 Gratt. 535; Sullivan v. Frink, 3 Iowa 66; Bassett v. Harkness, 9 N. H. 164; Cleland v. Hedley, 5 R. I. 163.

NAPTON, J.

We are unable to see any ground upon which the award of the arbitrators in this case was authorized to be set aside. The only ground suggested in the court below, or here, is, that after a patient hearing of the evidence for twenty-nine days and the close of the case by arguments from the counsel on both sides and the submission of briefs by the counsel, the arbitrators, in the absence of one of the parties and his attorney, called in the attorney of the opposite party, to point out certain items referred to in his brief, which they were unable to find. The attorney accordingly, when sent for, appeared before the arbitrators, pointed out the book or page, and retired. Not a word passed between him and the arbitrators in explanation of the item or items pointed out--and they needed no explanation--were perfectly unambiguous and admitted only of one interpretation. The attorneys on each side, at the request of the arbitrators--after the conclusion of their oral arguments--were requested to draw up briefs, and they did so, and Mr. Higbee's brief for his client (the appellant) occupied thirty-two pages of folio paper in manuscript, and contained a great many references to the books of accounts and other memoranda, that had been submitted to the arbitrators. These books, amounting to ten or twelve, and running through a period of four or five years, were in a very disorderly condition, much soiled and difficult to be deciphered. In some of them were distinct sets of paging, beginning, for instance, at the first page and running on regularly for twenty or twenty-five pages, and then, after an interval of several blank pages, again commencing with page one, two, three, & c., and so again for the third time in the same book. Necessarily, a reference to such book and page created some difficulty in finding the page referred to by its number, since there would be three different pages to which a reference might be applied. To call in the attorney whose brief they were examining, in such a state of facts, would seem to be a natural and harmless course, although a more protracted investigation on the part of the arbitrators might have led to the discovery. Had they called in the attorney or his client to explain an item, in the absence of the other party, which, without some explanation, they could not understand, the case would present a different question. We should then have a case similar to that of Harvey v. Shelton, 7 Beav. 455, which has been referred to here in support of the judgment below.

The head-note to that case is calculated to mislead--a singular blunder on the part of so accurate a reporter as Mr. Beavan--but clearly a mistake, unless the word interview is used by him in a sense more comprehensive than we use the term ordinarily in this country. Lord Langdale (Master of the Rolls) states the facts in that case to be that Mr. Wakefield (the arbitrator) sent for Mr. Shelton (one of the parties litigant) to attend him for the purpose of explaining an item of £350, but did not send for Mr. Harvey, the other party interested in the account, of which this was one item. The arbitrator asks Mr. Shelton's opinion, discusses the matter with him, and through his representations, made in the absence of the other, becomes satisfied and comes to a conclusion on it. The same thing occurred again. Other items presented difficulties, and Mr. Shelton was again summoned, and the other party not summoned. Mr. Shelton had another private interview with the arbitrator; the matter is discussed again, explanations are given, the result of which is that the arbitrator is satisfied. Lord Langdale, on these facts, set the award aside. “Both sides,” he says, “must be heard, and each in the presence of the other. In every case in which matters are litigated, you must attend to the representations of both sides, and you must not, in the administration of justice, in whatever form, whether in the regularly constituted courts, or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct or decisions of the judge, which means are not known to the other side.”

We refer to this case...