Thatcher Implement & Mercantile Co. v. Brubaker

• Decision Date: 12 June 1916
• Citation: 187 S.W. 117,193 Mo.App. 627
• Parties: THATCHER IMPLEMENT AND MERCANTILE COMPANY, Respondent, v. J. A. BRUBAKER, trading in the name of J. A. BRUBAKER & COMPANY, Appellant
• Court: Kansas Court of Appeals

187 S.W. 117

193 Mo.App. 627

THATCHER IMPLEMENT AND MERCANTILE COMPANY, Respondent, v. J. A. BRUBAKER, trading in the name of J. A. BRUBAKER & COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1916

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Guthrie Gamble & Street for appellant.

Grant I. Rosenzweig, Chas. E. McCoy and Sam M. Hutchinson for respondent.

OPINION

JOHNSON, J.

--Plaintiff a mercantile corporation doing business as a dealer in hay in Thatcher, Ariz., brought this suit in the circuit court of Jackson county against defendant, a dealer in the same commodity in Kansas City, to recover upon an award rendered in favor of plaintiff by the committee on arbitration of the National Hay Association which, as its name implies, is an association composed of dealers in hay doing business in the United States. The principal office of the association where its arbitration committee, consisting of five members, sits and transacts business is in Winchester, Ind.

Defendant was a member of the association but plaintiff was not when they entered into a contract which gave rise to the controversy between them nor was plaintiff a member when this controversy was submitted to the committee and the award was made and published. The contract provided for the sale by plaintiff to defendant of sixty cars of alfalfa hay to be shipped from Thatcher via El Paso to New Orleans by a designated route. When the hay arrived at destination defendant refused to receive it on the ground of plaintiff's failure to comply with the routing stipulation which resulted in delay in the transportation and consequent loss in the value of the hay. A controversy ensued which the parties, on July 3, 1912, agreed in writing to submit to the decision of the arbitration committee and this agreement, together with a mass of documentary evidence and a written statement of plaintiff's claim, were forwarded to the committee at Winchester. The committee received and filed the agreement and accompanying documents but refused to proceed unless the parties would make out, sign and file a written submission of the controversy on blanks conforming to the rules of the committee. Pursuant to this ruling a new agreement to submit the pending controversy was drawn on an approved blank, was signed by plaintiff at Thatcher, and by defendant at Kansas City, and was forwarded to and filed with the committee at Winchester.

It recited that "a controversy has arisen between the complainant and J. A. Brubaker of Kansas City, Mo. . . . over the purchase of sixty cars of hay by J. A. Brubaker from the complainant, as more particularly set out in the agreement for arbitration not on the blanks of the National Hay Association but now on file with the secretary of the Association in connection with the papers setting forth the contention of the complainant and the evidence in support thereof," and followed with the stipulation of the parties "to submit hereinbefore referred to difference and controversies to the arbitrament and decision of the committee on arbitration and investigation regularly appointed by the National Hay Association or any three of them who may be present at the time fixed for the hearing or who may concur in the finding of any one of them according to the by-laws, rules and regulations of said National Hay Association, and we do further authorize and empower the said committee . . . or any three of them who may be present at the time fixed for the hearing, or who may concur in the finding of any one of them to arbitrate, award, adjust and determine the differences and controversies now existing between us for the matter aforesaid. We do further agree that the award so made . . . shall in all things by us . . . be well and faithfully performed, that we will stand to and abide by and fulfill the same, and that we will pay whatever sum of money may be awarded as aforesaid, and further that we will abide by the by-laws, rules and regulations of said National Hay Association relating to arbitration. And we do hereby release the said committee jointly and severally from any and all claims or demands by reason of error in judgment or findings of law."

This agreement is in evidence but for some reason the informal agreement of July 3, 1912, to which it refers for a more particular statement of the controversy was not introduced in evidence.

The committee, without taking and subscribing to an oath and without hearing any testimony or arguments of the parties, but proceeding solely from an inspection of the written statements and documents filed by the respective parties, made and published on November 7, 1913, the following written award, signed by four of the five members of the committee:

"After reviewing carefully the entire pleadings and evidence with rebuttal and surrebuttal, we, the undersigned members of the Arbitration Committee, find as follows:

"Citation 1. The original contract was not complete and was faulty, it not being in accordance with National Hay Association Trade Rule No. 1, which reads as follows:

"It shall be the duty of both buyer and seller to include in their original articles of trade, whether conducted by wire or mail, the following specifications:

Numbers of cars or tons

Number of bales

Size of bales

Grade of hay or straw

The point of shipment or delivery or rate point

The time of shipment or delivery

The route and terms, except as follows:

The specifications of Rule I shall apply except in cases where the buyer and seller have been trading on agreed terms and conditions, in which event it shall be sufficient for the words, "usual terms" to be used in telegrams, and the use of such words shall imply that such terms and conditions as govern previous trades of like character shall govern."

"Citation 2. Trade Rule No. 8, in the absence of a proper confirmation, shall govern this transaction. This Rule reads as follows:

"Terms of sale" shall mean that the weights and grades of shipment shall be determined by the terminal or destination market rules, unless otherwise specified at time of the sale."

"Citation 3. The shipper violated this contract when he assumed authority to divert cars without instructions from buyer.

"Citation 4. The Committee considered the buyer, J. A. Brubaker & Co., was justified in repudiating this contract inasmuch as the shipper violated his contract as set out in Citation 3.

"Citation 5. The Committee decided unanimously that in view of the fact that had the defendants handled this hay as per original contract, they would have suffered a loss of $ 2 per ton on 1,437,325 pounds, by reason of decline in the market and we, therefore, assess loss against the defendants in the amount of $ 1,437.32 with interest at six per cent. from May 31, 1912, until November 15, 1913, making a total amount due the plaintiffs of $ 1,563.09, which should be paid within fifteen (15) days from the date of award."

As might be expected neither party was satisfied with this award which we must regard as the product of a faithful observance by the arbitrators of the stipulation of the parties that their dispute should be settled by the rules and laws of the Association and not by the principles and rules of the juridical contract law of the land.

The contract of sale was pronounced "faulty" because the parties, one of whom was a stranger to the Association had not drawn it in accordance with the laws of the Association, but it escaped being denounced as void, and the arbitrators found that plaintiff had breached its terms by diverting the shipment to another route without the consent of defendant and ruled that defendant was justified by such breach in rescinding the contract and refusing to accept the hay. This would have ended the case in favor of defendant in a court of law, but the committee, in an honest effort to do what they conceived to be complete justice, found that if plaintiff had fully performed the contract and defendant had received the hay at New Orleans defendant would have lost $ 2 per ton, or $ 1437.32 and adjudged that defendant, though fully justified in rescinding the contract must, nevertheless, pay over to plaintiff the amount of the loss he would have sustained. Concluding it was wiser to take this half loaf than to risk all by refusing it, plaintiff accepted the award and brought this suit to enforce it. Feeling that the juridical law which, at first, he despised but now applauds, would have given him a complete victory under the committee's findings of fact, defendant seeks to escape the award by attacking its validity.

His answer interposes a number of defenses but in his brief and argument he contends, first, that the arbitrators were required "to keep inflexibly within the limits of the particular matter submitted to them in the submission agreement," and since plaintiff, upon whom devolved the burden of proving not only the award but also the submission agreement containing the matters submitted to the committee, failed entirely to prove that agreement, there was such a failure of proof as to preclude a recovery on the award; and, second, that "the award is inconsistent on its face and, therefore, is invalid." The alleged inconsistency consists of the error of law involved in the award to plaintiff in the face of the finding that defendant was not in the wrong but was justified in refusing to receive the hay.

At the close of plaintiff's evidence, the...