Stout v. W.M. Garrard & Co.

• Decision Date: 27 March 1922
• Docket Number: 23395
• Citation: 128 Miss. 418,91 So. 33
• Parties: STOUT v. W. M. GARRARD & CO
• Court: Mississippi Supreme Court

91 So. 33

128 Miss. 418

STOUT v. W. M. GARRARD & CO

No. 23395

Supreme Court of Mississippi

March 27, 1922

1. ARBITRATION AND AWARD. Declaration in suit on award held not to state a cause of action.

Where parties agree to arbitrate their differences under the statute (Code of 1906, section 96 et seq.; Hemingway's Code, section 83 et seq.), and an agreement is signed by the parties and an award is made thereon, and suit is filed on the award, the declaration alleging the material facts in reference thereto, and making the contract in controversy, the agreement to arbitrate, and the award thereon exhibits to the declaration, it is error to sustain a demurrer to the declaration which alleged that the arbitrators heard all the parties and considered all points in controversy and passed upon and finally disposed of every question submitted to them fully and completely, and unanimously agreed to award to plaintiff the amount named etc., and that payment had been demanded and refused.

2. ARBITRATION AND AWARD. Every presumption will be indulged in favor of validity of arbitration proceedings.

Under the statutes on arbitration and award, Code of 1906, section 114, Hemingway's Code, section 101, articles of agreement to arbitrate and awards thereon are to be liberally construed so as to encourage the settlement of disputes and the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of arbirtation proceedings.

3. ARBITRATION AND AWARD. All arbitrators must participate, but majority may make award.

Under section 101, Code of 1906 (section 88, Hemingway's Code) all arbitrators must participate in the arbitration but a majority may make an. award, unless the articles of submission provide to the contrary; and, where the award shows that a majority agreed on each item of the award in this case, it is unnecessary to decide the question as to whether there was in law an unanimous award on the recitals of the award itself.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Suit by W. C. Stout against W. M. Garrard & Co. Verdict and judgment for the defendants. Motion for new trial overruled, and the plaintiff appeals. Reversed and remanded.

Judgment reversed, and case remanded.

Baskin & Wilburn, for appellant.

We submit that the fact that the arbitration is dated January 16, 1920, is no ground for declaring it invalid; and that by appearing before the arbitrators and proceeding with the arbitration until it was signed and published by the arbitrators, each party is now estopped to contend that there was anything invalid about the arbitration, growing out of the fact that it was not completed and signed until the 16th of January, 1920, though begun on the 15th of January, 1920.

It is not essential to the validity of an award that it should be made and signed immediately upon arriving at a decision, if it, in fact, is duly signed at a subsequent time. 5 Corpus Juris, page 117, sec. 271.

At any rate the declaration charges, and the demurrer admits, that the said arbitrators met, and the parties appeared before the said arbitrators and tried out said matters, whereupon said arbitrators signed and delivered to each party to the arbitration, a written report of their findings, a true copy of which is attached to the declaration.

Even if it should be held that the said arbitrators were to meet and act within the limit of the 15th day of January, 1920, there can be no doubt but that the parties to the agreement, either expressly or impliedly did waive it. They had a perfect right, either expressly or impliedly to consent that the arbitrators should act even after the date named in the agreement. A defendant cannot appear before the arbitrators under an agreement to arbitrate, and thus take a chance on a favorable issue, and then claim that the time of the arbitration or of the arbitrators to act, had expired. 5 Corpus Juris, page 101. The case cited will illustrate the principle of waiver. Small v. Trickey, 66 Am. Dec. 255-56; Drew v. Drew, 33 Eng. L. & Eq. 9; Hewitt v. Leigh & H. R. Ry. Co., 42 A. 325-329, 6 So. 834, 5; Badders v. Davis; Lumber Co. v. Holt, 26 So. 663-4; Connor v. Simpson, 7 A. 161; Montague v. Smith, 13 Miss. 396.

We understand that counsel make the contention that it is necessary in an arbitration under the common law, and necessary under the terms of this particular agreement, that the award of the arbitrators should be unanimous; and they contend that inasmuch as the report of the arbitrators shows that on certain items in the statement of account, all of the arbitrators did not vote as a unit, that then the final award of the arbitrators showing balance due W. C. Stout is not an unanimous award, even though signed by all of them and published by all of them.

We respectfully submit that this contention is not sound. The requirement of unanimity in the award, if applicable to this case at all, is fully met when the arbitrators made and stated an account, which shows a balance due to one of the parties, and all three sign it and publish it to the parties. S. L. McInnis voting no on last item and H. D. Byrd and W. C. Wetmore voting yes. 5 Corpus Juris, p. 96, sec. 204; Campbell v. Western, 3 Paige (N. Y.) 124.

We submit, however that the arbitration and the award in this case, complied with chapter 6 of the Code 1906, of Mississippi. Section 96 of the Code of 1906, of Mississippi, simply requires that the submission be by instrument of writing; and that any controversy existing between the parties may be so submitted to one or more arbitrators. The matter in controversy must be one that might be the subject of an action. All these conditions are met in the arbitration proceeding here involved. Bloomer v. Sherman, S. Paige (N. Y.) especially p. 578-579.

We submit that under section 96 of the Code of 1906, every essential of a statutory arbitration is provided for, and covered in the agreement to arbitrate in this case. Section 97 of the Code of 1906, refers to the qualifications of the arbitrators, and there is no suggestion that they were not qualified.

Sections 98 and 99 of the Code of 1906, provided for the appointment of a time of meeting by the arbitrators, and notice to the parties, and the form of notice to the parties, but in the case at bar it appears that the meeting was in the office of W. M. Garrard & Company, and it is alleged in the pleadings and admitted in the demurrer that both parties appeared in person before the arbitrators. Therefore, it is immaterial about the notice of the time and place of meeting under the decision in Mississippi Cotton Oil Co. v. Buster, 84 Miss. 91.

Section 100 of the Code of 1906, provides that the arbitrators shall take an oath. And the award on its face recites that each of the arbitrators were duly sworn before the chancery clerk. Section 101 of the Code of 1906, provides that a majority of the arbitrators may make the award, unless the concurrence of all is expressly required in the submission.

The only things vital to the award referred to in section 105 of the Code of 1906, are the signature by the arbitrators and the publication of the award, and both of these facts appear in the case at bar. Delivery of a copy of the award is merely directory. Tenn. Coal & Iron Co. v. Russell, 46 So. 866. It cannot be said in this case, that the award is invalid because not full and complete and responsive to all of the matters of difference included in the submission.

Common law arbitration still in force, statutory proceedings cumulative. 5 Corpus Juris, page 19, sec. 5. Our statute does not, by express terms, or necessary implication, abrogate the common law, on the contrary it is expressly provided: "This chapter shall not be construed to take away from the court of equity, their power over awards, nor to make invalid any award good at common law; and it shall be liberally construed, for encouragement of settlement of disputes and preventions of litigations." Sec. 114, Code 1906; Ins. Co. v. Skaggs, 75 So. 437; Sec. 101, Hemingway's Code. Note also Sheffield v. Clark, 93 Ga. 92; Faust v. Hastings, 24 N.W. 22.

The award pleaded here required a plea and could not be met by demurrer. Yarho v. Purser, 74 So. 424; Finding of Balance due. Corpus Juris, page 145, sec. 347.

Presumption in Favor of Award. Every reasonable intendment will be indulged to give effect to the proceedings of the arbitrators and in favor of the regularity and integrity of the arbitrators' acts. And where objection is taken to an award proper on its face every reasonable presumption will be indulged in its favor. The burden of proof rests upon the party attacking the award. 5 Corpus Juris, page 244, sec. 675; Upshaw v. Hargrove, 6 Sm. & M. 286-292; Hill v. Hill, 11 Sm. & M. 616-626; 5 Corpus Juris, p. 246, sec. 681.

Operation of Award, Conclusive Effect Thereof. 5 Corpus Juris, page 160, sec. 389; 2 Ency. of Law, 605, 607, 736.

Under Submission of Enumerated Matters. Where the submission is of divers matters, distinctly enumerated, and it appears from the whole award that the matters submitted were adjudicated upon, it is sufficient though each particular is not specified in the award, unless the submission requires a separate finding as to each matter. But if more than one separate and distinct matter is specifically submitted, and the general finding does not, necessarily, include all such matters, the award must show that each of the separate matters was considered and passed upon by the arbitrators. See Note 3 Cyc., page 701; Jenkins v. Meagher, 46 Miss. 840, 94.

Sufficient Evidence to impeach Award. In order to justify the court in setting aside an award, the fraud or other ground...