Thornton v. McCormick

• Decision Date: 02 October 1888
• Citation: 39 N.W. 502,75 Iowa 285
• Parties: THORNTON v. MCCORMICK
• Court: Iowa Supreme Court

39 N.W. 502

75 Iowa 285

THORNTON v. MCCORMICK

Supreme Court of Iowa, Des Moines

October 2, 1888

Decided October, 1888

Appeal from Palo Alto District Court.--HON. GEORGE H. CARR, Judge.

ON the twenty-second day of January, 1886, the defendant leased to plaintiff a farm in Palo Alto county for the term of five years, commencing on the first day of March, 1886, and also a quantity of personal property, consisting in part of agricultural implements, stock, hay and grain.On the seventh day of June, 1887, these parties entered into an agreement the parts of which material to a determination of this case are as follows: "Whereas controversies exist between usCharles McCormick and J. R. Thornton, of Palo Alto county Iowa, in relation to divers matters growing out of, or in some way connected with, the relation of landlord and tenant between us, under a certain agreement of lease dated the twenty-second day of January, A.D. 1886, and which said lease, it is agreed between the parties, shall now terminate and end, and the rights of the parties under said lease shall be the same as provided therein at the regular end or termination thereof: now, therefore, we, the undersigned Charles McCormick and J. R. Thornton, do hereby agree to submit all and every matter of difference between us, under said contract or otherwise, to Alexander Sims, Thomas Lane and Joseph S. Atkinson, of Palo Alto county, who shall meet at Emmetsburg, at such time and place as they shall select, and who shall arbitrate, award, adjudge and determine such matters as either of us may in writing present to said arbitrators for their consideration, with power to said arbitrators to call in and examine witnesses on such points as they may think necessary, and award the costs of same to the party calling such witnesses; and each party must present all matters which he has against the other to the said arbitrators in writing, or be forever barred and estopped from making any further or other claim; and said arbitrators shall make their report, specifying the items allowed to each, and the items claimed by each, respectively, which are rejected, and, after offsetting the claims allowed to the one against the other, shall award to that one in whose favor the balance is found such sum as they shall find and determine to be his due against the other, to be paid and payable within sixty days from the time said arbitrators shall make their award; and said arbitrators shall also by their said award fix and determine the time at which possession of said farm and property shall be given to the said Charles McCormick; and such award shall be made in duplicate, and one copy delivered to each of the undersigned.* * * And the undersigned do mutually covenant and agree to and with each other that the award to be made by the arbitrators, or by any two of them, shall, in all things, by us and each of us and our personal representatives, be well and faithfully kept, observed and performed, provided that such award be made in writing, under the hands of said arbitrators, or any two of them, and be delivered to us personally, or forwarded to us by mail, on or before the thirtieth day of June, 1887."The arbitrators rendered their award in writing on the twenty-first day of June, 1887, and thereby determined that defendant should pay to plaintiff $ 149.47, and that certain stock and poultry should be divided according to a plan therein specified.It appears that the property was divided according to the award.This action is brought to recover the amount of recovery named in the award, and eight dollars, alleged to be due the plaintiff in a division of cattle, made pursuant to the award.The defendant set up an equitable defense in his answer, and asks that the award be set aside, and that the court examine the claims and demands of the parties, and make such settlement as shall be equitable, and render judgment accordingly.A demurrer to the answer was sustained.The defendant electing to stand on his answer, judgment was rendered in favor of plaintiff for $ 151.50 and costs.Defendant appeals.

AFFIRMED.

Soper & Allen, for appellant.

Clarke & Call, for appellee.

OPINION

ROBINSON, J.

The agreement to arbitrate in terms provided for the settlement of all matters of difference between the parties, but did not authorize the enforcement of the award, which should be made by the judgment of a court.The award in question was not made in accordance with the provisions of the statute relating to arbitration, and is not, therefore, governed by them, but its legality and effect must be determined by the rules relating to awards at common law.McKinnis v. Freeman, 38 Iowa 364;Burroughs v. David, 7 Iowa 154.

I.It is insisted by appellant"that the proceedings of said arbitrators were unfair, unjust and illegal, in this, that they ignored all matters, contracts, and written evidences of debt, and payment which was made by this defendant, and upon which he relied, both to substantiate his claims, and defend himself against the claims of this plaintiff, and accepted as true the loose, verbal statements of the plaintiff with regard to the matters in controversy, and did not require him to substantiate the same by his oath or otherwise; no witness having been examined under oath.That his statements taken and received by said arbitrators as aforesaid were in many particulars incorrect, false,--willfully so,--and that said arbitrators, with more credulity than judgment, made up the base of their findings thereon.That the same...