Sweeney v. Vaudry

• Decision Date: 06 June 1876
• Parties: EUGENE G. SWEENEY, Plaintiff in Error, v. JULES VAUDRY et al., Defendants in Error.
• Court: Missouri Court of Appeals

2 Mo.App. 352

EUGENE G. SWEENEY, Plaintiff in Error,

v.JULES VAUDRY et al., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. A submission to a majority of five arbitrators will support an award by four, where only four heard the case, when both parties were present at the hearings, and no objection was made until after the award. Such an award can be enforced by motion under our statute.

2. Where the parties had rested their case, and the arbitrators, on notice to both sides, reopened the matter for further testimony, this will not invalidate the award.

3. Where the arbitrators were under the submission to comply with the by-laws of a certain association, and violated these by-laws in not entering in a proper book a summary of the controversy and the grounds of their award, held, that such neglect did not invalidate the proceedings.

ERROR to St. Louis Circuit Court.

Reversed, and judgment rendered.

Marshall & Barclay, for plaintiff in error, cited: Wag. Stat. 143, secs. 1, 6; Bridgman v. Bridgman, 23 Mo. 272; Tucker v. Allen, 47 Mo. 488; Howard v. Saxton, 1 Denio, 440; Graham v. Graham, 9 Pa. St. 254; French v. New, 20 Barb. 481; Woods v. Page, 37 Vt. 252; White v. Robinson, 60 Ill. 499; McShaw v. Gray, 13 Iowa, 504; Akridge v. Patillo, 44 Ga. 585; Blanchard v. Murray, 15 Vt. 548; Bemus v. Clark, 29 Pa. St. 251; Norton v. Savage, 10 Mo. 455, Knowlton v. Homer, 30 Mo. 552; Shisler v. Keavy, 75 Pa. St. 79; Cutler v. Whittemore, 10 Mass. 442; Taylor v. Zepp, 14 Mo. 482; Rutherford v. Tracey, 48 Mo. 325; Morse on Arbitration, 117; Broom's Leg. Max. 129; Woodrow v. O'Conner, 28 Vt. 776; Hill v. Taylor, 15 Wis. 190; Bruner v. Marcum, 50 Mo. 405; Tower v. Moore, 52 Mo. 118; Mitchell v. Curran, ante; Shores v. Bowen, 44 Mo. 396; Bowen v. Sazalare, 44 Mo. 383; Drummond v. Drummond, L. R. 2 Eq. 355; Drummond v. Drummond, L. R. 2 Ch. 32; Collins v. Lewis, L. R. 8 Eq. 708; Dugdale v. Dugdale, L. R. 14 Eq. 234; Peck v. Gurney, 22 W. R. 33; 1 Kent's Com. 463; Byars v. Thompson, 12 Leigh, 550; Pearce v. Danforth, 13 Mo. 360; Hood v. Mathias, 21 Mo. 308; Johnson v. Mason, 27 Mo. 511; O'Flaherty v. Kellogg, 59 Mo. 485; Howard v. Cooper, 1 Hill, 44; Sutton v. Tyrrell, 10 Vt. 91; Brown v. Leavitt, 26 Me. 251; Mullins v. Arnold, 4 Sneed, 262; Dickerson v. Roke, 30 Pa. St. 390; Stewart v. Waldron, 41 Mo. 486; Rixford v. Nye, 20 Vt. 132; M. & D. R. R. Co. v. Porter, 19 Md. 458.

Blakeman & Thayer, for defendants in error, cited: Wag. Stat. 143, sec. 5; Shores v. Bowen, 44 Mo. 396; 44 Mo. 383; Toler v. Hayden, 18 Mo. 399; Walt v. Huse, 38 Mo. 210; Fassett v. Fassett, 41 Mo. 516; Fields v. Oliver, 43 Mo. 144; Howard v. Saxton, 1 Denio, 440; Howard v. Saxton, 4 Comst. 157; Wells' Arbr., 1 N. Y. Leg. Obs. 189; Bulson v. Sohnes, 29 N. Y. 291.

BAKEWELL, J., delivered the opinion of the court.

This is a motion for a judgment upon an award of arbitrators. Plaintiff in error and defendants in error filed with the record the following agreed statement of the case:

On June 5, 1874, plaintiff and defendants, in order to settle a business controversy (and being both members of an association called the “Cotton Association of the City of St. Louis”), executed an agreement of submission to arbitrators, the material parts of which are as follows:

The parties agreed “to submit said difference and controversy to the arbitrament and decision of J. L. Sloss, N. Corrona, F. B. Davidson, H. S. McLaren, and Fred. Von Phul, * * * or a quorum of them, with the right of appeal, on the part of either the above-named parties, to the committee of appeals, according to the rules and regulations of said Cotton Association,” etc.

By the submission they agreed further that they would “abide by all the rules and regulations of said Cotton Association, in relation to arbitration, and that the award, when made in pursuance of the submission, might be entered on the records of the Circuit Court of St. Louis county, and a judgment be had thereon * * * in pursuance of the provision of the statute law of the State in cases of arbitration under said statute.”

On June 13th four of said five arbitrators (named in the submission) met together, and the respective parties to the submission were all present at said meeting. Whereupon said four arbitrators were duly sworn, according to law, and proceeded to hear the proofs and allegations of both the respective parties, without any objections by either party to such action. The plaintiff and defendants herein appeared before said arbitrators on said June 13, 1874, and on several subsequent days, to which adjournments of said hearing were regularly made, and then and there said parties, plaintiff and defendants, presented testimony on their respective behalfs. On June 17th both parties announced that they had closed their proofs, and thereupon orally argued their case before said four arbitrators. Afterwards the plaintiff proposed to offer certain additional testimony; whereupon the said four arbitrators took the matter under advisement, and, shortly afterwards, decided to permit the introduction of additional testimony.

Said arbitrators thereupon notified plaintiff and defendants of such decision, and requested their further attendance at a time and place named by said arbitrators; whereupon defendants withdrew from further attendance upon said arbitration, and declined to proceed further therein, and immediately notified said arbitrators of their said withdrawal therefrom, and did not in fact further attend upon said arbitration.

The said four arbitrators, at the time and place appointed by them (as above stated), heard the additional testimony offered by plaintiff, and, on June 26, 1874, published the award, which is the foundation of this action, in which they find for plaintiff in the sum of $2,328.01 and costs ($53).

One of the arbitrators named in the submission did not attend any of said meetings of arbitrators, and was not sworn therein, and did not hear any of the proofs or allegations of the parties, or take part in the decision of the cause. The arbitrator not attending was absent in Europe, which fact was known to all parties.

The award is signed by said four arbitrators, and attested by the seal of said Cotton Association, and by Myron Colony, its secretary.

The parties, plaintiff and defendants, were, at all these times, members of the said Cotton Association; and one of the by-laws of that association, in force during all these occurrences, was this:

“Sec. 2. The adjudication committee shall consist of five members of the association, some of whom shall be members of the board of directors. Three of said committee shall be factors and two buyers. It shall be the duty of this committee to hear and decide upon any controversy which may arise between members of this association, and which may voluntarily be submitted to the committee for arbitration. Each member, by an instrument in writing, may agree to submit to the decision of this committee any controversy, and that said instrument may be entered on the records of the Circuit Court of St. Louis county, and that a judgment of the Circuit Court of St. Louis county shall be rendered upon the award made pursuant to such submission, in accordance with the statutes of Missouri. The committee shall appoint a clerk, not of their own number. All persons who may desire the services of this committee shall file with the clerk an agreement, in writing, to submit their cases to the committee, and abide by its decision; and any member may cite another to submit a cause in controversy to the committee, and such other member shall thereupon submit the same as cited. The clerk shall be entitled to a fee of five dollars for each sitting of the committee, said sum to be paid by the party against whom the decision may be made. The proceedings of said committee shall be recorded in a book, to be kept for the purpose, in which shall be entered a summary of each controversy had before it, the award made thereon, and the grounds for such award; said book shall be the property of the Association, and subject to the inspection of the members.”

The arbitrators failed to enter, in any book kept for that purpose, a summary of said controversy, or the award made on the grounds thereof.

The aforesaid facts were submitted to the Circuit Court in the form of an agreed case, and that court overruled the motion to confirm the award. This judgment was affirmed in the general term, and the plaintiff sued out the writ of error, which brings the case here.

The questions presented for our determination by this statement, which correctly embodies the facts presented in the record, are these:

It is maintained by defendant in error:

1. That a submission to a majority of five arbitrators will not support an award by four, when only four had heard the case.

2. That, even if such an award be good as a common-law award, it cannot be enforced by motion, under our statute.

3. That, even if such an award be good, and enforceable by motion, it was invalidated in this case by the irregularity of hearing testimony after the parties had rested.

4. That the award, in any case, was bad for want of compliance, in essential particulars, with the by-laws above set forth.

1. It is held, both in this country and in England, that, in the absence of any statutory provision to the contrary, in case of a submission to three arbitrators, requiring the award to be signed by any two of them, a hearing and award by two of the arbitrators is good. Bulson v. Lohnes, 29 N. Y. 291; Dalling v. Matchett, Willis, 215. The theory is that, by such a clause in the submission, the entire authority is disjoined, so that a majority is empowered to hear as well as to determine.

But--inasmuch as our statute provides that all the arbitrators must meet together and hear all the allegations and proofs--it is held that, in Missouri, all the arbitrators must hear the proofs and act, even where the majority may make the...