Schoolnick v. Finman
| Decision Date | 18 December 1928 |
| Citation | 144 A. 41,108 Conn. 478 |
| Court | Connecticut Supreme Court |
| Parties | SCHOOLNICK v. FINMAN. |
Appeal from City Court of Hartford; Herbert A. Ross, Judge.
Action by Michael Schoolnick against Henry A. Finman to recover the award made by arbitrators under a submission of the plaintiff and defendant copartners. Judgment for plaintiff for $414 and defendant appeals. Error, and judgment reversed, with directions.
The plaintiff and defendant, having various disagreements concerning their partnership in buying and selling furniture submitted them to three arbitrators under an agreement to conform with any decision which they should render. The arbitrators considered all questions in dispute. Both parties appeared before them, but neither said anything about the retiring partner not engaging in business in competition with the partner who should continue the business. Dressler, the chairman of the arbitrators, on the day succeeding the submission, delivered to each partner a memorandum signed by the arbitrators providing that the plaintiff, Schoolnick, the outgoing partner, should receive from Finman & Co., the defendant, $400. The arbitrators, in discussing and making the award of $400, agreed that, in consideration of it, the plaintiff should not engage in business in competition with the defendant, the continuing partner, and agreed that the chairman should orally inform the plaintiff and defendant that, in addition to the award, the plaintiff should not engage in such competition. Dressler did not so inform plaintiff or defendant. The defendant, Finman, upon being handed the written award by Dressler, and upon being told by him that he, Finman, was to pay $400, asked why did he have to pay $400, upon which Dressler replied, Neither the arbitrators nor any of them directly informed the plaintiff or the defendant that they had considered the question of the outgoing partner not engaging in business in competition with the continuing partner until November, 1927, after suit brought, and just before the trial of this action.
The defendant made no attempt to have the award reformed prior to this action. Immediately after the delivery of the memorandum of award, the plaintiff made demand upon defendant for the $400, which defendant refused, unless plaintiff would in writing agree not to engage in business in competition with defendant. Two days later plaintiff brought this action. The plaintiff engaged in business in competition with the defendant at all times after the award, and called upon the outside customers of the former partnership seeking their trade, and sold to the customers of the partnership. After the award, the business of the defendant declined, and in a few weeks, since it was not conducted at a profit, he discontinued it.
Partner sued by withdrawing partner on written arbitration award, held entitled to show, under general denial, that award was on oral condition plaintiff should not compete with him.
Louis Y. Gaberman and Simon Kramer, both of Hartford, for appellant.
Walter F. Foley, of Hartford, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
WHEELER, C.J. (after stating the facts as above).
The submission to the arbitrators by these partners was a general common-law submission of all of their disputes and disagreements. The submission did not provide, as it might have, the method of the award, whether it should be in writing or oral. The arbitrators might have made the award in writing, or orally. Jones v. Dewey, 17 N.H. 596, 598; Gay v. Waltman, 89 Pa. 453, 456; Philbrick v. Preble, 18 Me. 255, 36 Am.Dec. 718; Phelps v. Dolan, 75 Ill. 90.
A submission to arbitration is an agreement by the parties that the decision of the arbitrators shall be final as to all matters properly within the submission, and that they will do whatever the arbitrators direct shall be done by each. Penniman v. Rodman, 13 Metc. (Mass.) 382, 384. Both partners concede that the submission contemplated the withdrawal of one of the partners and the continuance of the business by the other.
The terms of the submission indicate the purpose of the parties to have been the adjustment of all of their partnership affairs upon a basis deemed just by the arbitrators. Ford v. Burleigh, 60 N.H. 278, 282.
The award under a submission, unrestricted as to method, may be in one writing or several,...
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...submission may be included in the award. Palmer v. Green, 6 Conn. 14, 18; Hamlin v. City of Norwich, 40 Conn. 13, 23; Schoolnick v. Finman, 108 Conn. 478, 481, 144 A. 41; Sturges, Commercial Arbitrations & Awards, pp. 144, 229; Russell, Arbitrations & Award, 13th Ed., pp. 201, 210, 211.' Pr......
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