Phillips v. Couch

• Decision Date: 31 October 1877
• Parties: PHILLIPS v. COUCH, Appellant.
• Court: Missouri Supreme Court

66 Mo. 219

PHILLIPS

v.COUCH, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Andrew Circuit Court--HON. H. S. KELLY Judge.

The following instructions were given by the court:

1. A settlement of the matters in dispute between the parties may lawfully be made by agent, and will bind the parties, provided the acts of the agent in and about such settlement and matters considered by them, in all such matters and things as they, as such agents, are authorized to consider by the principals, and their settlement will not bind the principals, if the agent neglect or omit any material or substantial right of the principal, and if the jury believe that J. C. Couch and Howell, although duly authorized to settle the matters in dispute between plaintiff and defendant, failed or refused to consider evidence upon such substantial matter in dispute, then you must find for defendant. If, however, the said J. C. Couch and Howell, understood and knew what matters were in dispute, and what they were called upon to settle, it will be sufficient, whether they heard other or further evidence or not.

2. This is a suit to recover $75, balance alleged to be due from defendant to plaintiff on a settlement. Defendant denies that there was a settlement, or that there was or is anything due plaintiff. If you find from the evidence that there were differences between plaintiff and defendant, and that they mutually agreed to submit the matters of dispute or difference to J. C. Couch, with the agreement that they would abide by and perform his decision, and that after hearing the statements of the parties, and examining the matters in dispute the said J. C. Couch declined to decide between them without the assistance of another man, and that plaintiff and defendant then agreed to call in one Howell to assist the said J. C. Couch in making a settlement, and that the said James Couch and Howell did arrive at a decision and settlement of the matters in dispute, and that, by said settlement, it was required that defendant should pay the plaintiff $75 as a balance due on said settlement, and that the result of the said settlement was communicated to the said parties, and they assented to it or agreed to it, and plaintiff performed his part of the terms of the same, then the settlement became binding upon the parties; and if you find from the evidence that the defendant has failed to pay the said balance of $75, you should find for the plaintiff the sum of $75 with interest at 6 per cent. per annum from the date of said settlement; but if you find no settlement was made with the parties, either by themselves or by the said James Couch and Howell, acting for said parties by their agreement, of the matters in dispute, by which any balance was found to be due from the defendant to plaintiff, you should find for the defendant.

The following is the instruction given at the instance of plaintiff:

It was competent for the parties to assent to and agree to a finding of J. C. Couch and John B. Howell, as well by acts as by words. Therefore, if the jury find from the evidence that the said J. C. Couch and John Howell found and agreed that defendant should pay plaintiff $75, and that the fact was communicated to defendant, and that defendant did not refuse to abide by such settlement, but then and there knowingly received the $100 note in question from plaintiff's wife, at plaintiff's direction, as a part settlement of the matters between them under such finding, then such conduct on the part of the defendant was a ratification of the finding of said J. C. Couch and John B. Howell, and the defendant is bound thereby.

The following instruction is No. 4 as asked by defendant, and refused by the court:

“A settlement of the matters of difference between the parties may lawfully be made by agent, and will bind the parties, provided the acts of the agent in and about such settlement, and matters considered therein by them, on all such matters and things as they, as such agents, are authorized to consider by the principals; and their settlement will not bind the parties principal if the agents neglect or omit any material or substantial right of the principal. And if the jury believe that James C. Couch and John Howell, although duly authorized to settle the matters in dispute between plaintiff and defendant, failed or refused to consider evidence upon any substantial matter in dispute, then they must find for defendant.”

The following is instruction No. 1, given at the instance of defendant:

If the jury believe, from the evidence, that plaintiff and defendant, prior to the 6th day of August, had mutual demands against each other, and disagreed as to such demands and the true state of their accounts, and that about that date Couch and Howell were requested to arbitrate said matters in dispute, and that said arbitrators, without qualifying as required by law, and without examining witnesses, papers, or other evidences of the state of the accounts between plaintiff and defendant, and without the knowledge or consideration of the receipt in dispute on the part of said Howell, agreed that defendant should pay plaintiff seventy-five dollars; and if they further believe from the evidence that said arbitrators made no written finding or award in such case, and delivered no award or finding to said defendant, they will find for defendant, unless they further find that defendant, after the finding, promised in writing to pay plaintiff, or knowingly received from plaintiff some valuable consideration, or knowingly accepted from plaintiff the promissory note dated May 22, 1873.

J. D. Strong for appellant.

1. Plaintiff did not intend to, nor could he, proceed by motion, to confirm an award, either statutory or other. There was no written submission nor stipulation for a judgment. Wag. Stat., p. 143, § 1. The arbitrators were not sworn. Wag. Stat., p. 143, § 3. They neither...