Wallace v. Underwood

• Decision Date: 19 November 1888
• Citation: 32 Mo.App. 473
• Parties: G. W. WALLACE, Respondent, v. J. W. UNDERWOOD et al., Appellants.
• Court: Kansas Court of Appeals

32 Mo.App. 473

G. W. WALLACE, Respondent, v. J. W. UNDERWOOD et al., Appellants.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Jasper Circuit Court. --HON. M. G. MCGREGOR, Judge.

AFFIRMED.

The case is stated in the opinion.

Phelps & Brown and McReynolds & Halliburton, for the appellants.

(1) A written submission to three arbitrators will support an award by one, where only one heard the case, where both parties were present at the hearings and consenting thereto. The submission would be modified by such consent. Sweeney v Vaudry, 2 Mo.App. 353; Morse on Arbitration, 171; 6 Wait's Act. and Def. sec. 11; Thompson v Blanchard, 2 Iowa 44; McShane v. Gray, 13 Iowa 504; Woods v. Page, 37 Vt. 252; Bemus v Clark, 29 Penn. 253. The parties having agreed to dispense with two of the arbitrators appointed and agreed to proceed with the hearing before one only, it is too late to object to the award by one arbitrator after the plaintiff has taken all chances of an award in his favor and made no objection until the award was found to be against him. He having consented to go on before Jas. F. Daugherty as sole arbitrator, at the first meeting, is as much bound by the award as if Daugherty alone had been named in the written submission. Akridge v. Patillo, 44 Ga. 585; Kile v. Chapin, 9 Ind. 150. (2) The award was within the terms of the submission and covered all the matters presented to the arbitrator by the parties. It was sufficiently certain, definite and final; all that was necessary in order to arrive at the amount due defendants, under the findings of the arbitrator, was to strike a balance, or merely make an arithmetical calculation. Certainty to a common intent is all that is necessary in an award, and it is sufficient if the arbitrator considers and determines those matters only which were embraced in the submission. Cochran v. Bartle, 91 Mo. 636; 6 Wait's Act. and Def. 544, 545; Carsley v. Lindsey, 14 Cal. 390; Akley v. Akley, 16 Vt. 456; Rush v. Davis, 34 Mich. 190; Benson v. White, 101 Mass. 48; Burrows v. Guthrie, 61 Ill. 70. It is not indispensable that an award should state the precise amount to be paid, if nothing remains to be done in order to render it certain and final but ministerial acts or mathematical calculations. Waite v. Barry 12 Wend. [N. Y.] 380; Cochran v. Bartle, 91 Mo. 638. Nor is it essential to the validity of an arbitration that it should adjust all matters of difference between the parties. Pearce v. McIntire, 29 Mo. 423. (3) Even if the books were not produced, it will not avail plaintiff, as no such ground was urged in the motion to vacate the award. R. S. sec. 3557.

Thomas & Hackney, for the respondent.

(1) To entitle appellants to a confirmation of the award made by J. F. Daugherty and to a judgment thereon the agreement to submit the matters in dispute to him must have been in writing. R. S. 1879, sec. 327; Woodbury v. Porter, 9 Gray [Mass.] 18; Bowen v. Lazalere, 44 Mo. 383; Francis v. Ames, 14 Ind. 251; Sargent v. Hampden, 29 Me. 70. Under a statute requiring a submission to be in writing, an award made by an arbitrator appointed by parol, subsequent to the written submission, will not be entered of record as valid. Jones v. Payne, 41 Ga. 23. (2) Even though it be held that respondent might make a valid agreement by parol to dispense with the services of two of the arbitrators and submit the issues to J. F. Daugherty, yet as his agreement, as found by the court, was on the condition that all the books of the firm were to be produced, and such condition was not complied with, respondent was not bound by the award. (3) There was no error committed by the court in sustaining respondent's motion to vacate the award. The arbitrator failed to comply with the terms of submission by not examining all the books and the award was not a definite, mutual and just finding of the matters in dispute. R. S. 1879, sec. 335. (4) No objections having been made or exceptions taken to the introduction of evidence, no declaration of law asked or given, and no motion made by appellants for a new trial, nor motion to set aside the judgment setting aside the award, the appellate court will not reverse the finding and judgment of the circuit court. Long v. Towle, 41 Mo. 398; Collins v. Sanders, 46 Mo. 389. The practice on appeal in this case is the same as in other civil cases. R. S. 1879, sec. 347; Rotchford v. Cremer, 65 Mo. 49; State ex rel. v. Burckhartt 83 Mo. 430; State ex rel. v. Hurlstone, 92 Mo. 327.

Phelps & Brown and McReynolds & Halliburton, in reply.

(1) It will be observed that the judgment in this case was rendered upon the motion filed by plaintiff to set aside the award of the arbitrator, which motion and the action of the court thereon are preserved of record by the bill of exceptions. ( a ) Our supreme court has repeatedly held that when the case is disposed of upon motion it is not necessary to file a motion for a new trial in order to review the action of the court below. The case of Parker v. Waugh, 34 Mo. 340, is exactly in point. A motion was made in that case for a rule on the sheriff of Boone county requiring him to pay certain executions, which motion was overruled, and an appeal taken from the action of the circuit court in overruling said motion. Judge Bates speaking for the court says: " It is insisted that this court cannot review the decision of the circuit court upon a motion, because there was no motion for a new trial made. It has not been the practice of this court in reviewing the decisions of other courts upon motions to require * * * that a motion for new trial should be made." (b ) This question again came in review in the celebrated case of O'Connor v. Koch, 56 Mo. 253. The court in that case says: " It is objected in this court by defendant that no motion for a new trial was filed in the circuit court, and that, therefore, this court will not review the errors of the court below. It is very true, that in most cases a motion for a new trial is necessary in order to bring the matter complained of to the attention of the trial court and save matters of exception which occurred in the progress of the trial. * * * But when the whole case is decided upon demurrer to the petition, and judgment rendered thereon, or when the case is dismissed upon motion, and the motion and the exceptions are preserved of record, by a bill of exceptions, so that the errors of the court appear upon the record, it is not usual or necessary to file a motion for a new trial for the mere purpose of having the court to twice hear the same motion or demurrer." (c ) In the case of Jones v. Manly, 58 Mo. 559, the court held that, where the motion to strike out an equitable defense and the action of the court thereon is preserved by the bill of exceptions, there was no necessity for referring to it in a motion for a new trial. The case is too clear for serious argument, or to demand the support of authorities. The cases cited by defendant's counsel in support of their position, viz., Rotchford v. Cremer, 65 Mo. 49; State ex rel. v. Burckhartt, 83 Mo. 430, and State ex rel. v. Hurlstone, 92 Mo. 327, will be found on examination to bear no analogy to the case at bar. The question in these cases arose on exceptions filed to reports of referee and a perusal of the opinions will show that the court reached its conclusions because the report of a referee was treated and considered as equivalent to a special verdict of a jury. (2) The authority of a decision is necessarily limited to the points decided. Now what was the question directly presented for adjudication in those cases? It was that before the action of the trial court in confirming or modifying the report of a referee can be reviewed a motion for a new trial must be made. But in none of its essential features is that the case at bar, nor does it bear the slightest resemblance to it, indeed, there is no parallel at all between these three cases and the one now before this court. There is not the remotest similarity between the award of an arbitrator and the verdict of a jury. An arbitration is a domestic tribunal, created by the consent of parties litigant, and resorted to for the purpose of avoiding the expense, delay, and ill feeling consequent upon litigating in the courts, and so favored is this tribunal by our courts that they will not interfere with an award unless partiality or corruption can be shown, or the arbitrators have awarded on matters not...