Warren v. Tinsley

• Decision Date: 09 January 1893
• Docket Number: 47.
• Citation: 53 F. 689
• Parties: WARREN et al. v. TINSLEY.
• Court: U.S. Court of Appeals — Fifth Circuit

53 F. 689

WARREN et al. v. TINSLEY.

No. 47.

United States Court of Appeals, Fifth Circuit.

January 9, 1893

Statement by PARDEE, Circuit Judge:

This suit was instituted in the United States circuit court for the northern district of Texas, at Waco, on October 2, 1885 by Thomas Tinsley against Henry M. Warren, and the heirs of N. A. Warren, to wit, W. D. Warren, George Warren, Lillie Warren, Frank Warren, H. H. Warren, Jr., and Nellie Warren upon the following described instrument, to wit:

'$500.00

Waco March 7, 1881.

'Three years after date, we, or either of us, promise to pay to Thomas Tinsley, or his heirs, the sum of five hundred dollars, with 12 per cent. compound interest per annum from date, in consideration of a credit of like amount on our note now held by him, dated February 17, 1879; conditioned, however, that if the said Tinsley realizes the sum of seven thousand dollars, or has an offer or offers in writing amounting to said sum, which are made to and known by him and refused, out of or through the property or other thing of value or assets acquired by him through the estate of John W. Warren, under his contract with H. M. Warren of this date, then this note shall be canceled and surrendered to us without payment. This note shall not be transferred by said Tinsley, and is made, by agreement between him and us, not transferable; and, in case this note has to be collected by suit, we agree to pay reasonable attorney's fees for said collection.

(Signed)

'H. M. Warren. 'N. A. Warren.'

This obligation was secured by a contemporaneous deed of trust in ordinary form upon 50 acres of land out of the J. M. Stevens league of land in McLennan county, duly executed by H. M. Warren and wife, N. A. Warren, and duly recorded, providing that, in default of payment of the obligation aforesaid, the trustee could sell the land, and pay the obligation, with interest, etc. The bill prayed foreclosure of the lien created by the deed of trust, the sale of the land, etc., alleging that the trustee declined to act, and negativing all the contingencies mentioned in the obligation, whereby it might become null and void. The complainant sues as an alien of the United States and a subject of the kingdom of Great Britain. The respondents are citizens of McLennan county, in the northern district of Texas. The heirs of N. A. Warren were minors, and appeared by Henry M. Warren, who represented them as guardian ad litem under order of the United States circuit court. The respondents filed answer under oath, alleging that they ought not to be held bound to pay the obligation aforesaid, because complainant failed to comply with the conditions thereof, in that complainant, being an alien, and for the most part of the time from the date to the maturity of said obligation being absent from McLean county, Tex., where said obligation was executed, and where it was to be performed, placed it out of the power of respondents by his absence and his failure to notify respondents who his agent was to make the offer contemplated and expressly provided for by said instrument. It was further alleged that during the year 1882 complainant left the state of Texas without leaving any agent known to respondents, and while he was thus absent, and his whereabouts unknown, that respondents had two offers to sell for $7,000 cash the interest in the estate of John M. Warren, deceased, which complainant acquired under contract with respondent H. M. Warren aforesaid; the first offer being by one S. C. Coleman, who was a man of means, and fully able to comply with his offer; and that respondent H. M. Warren made diligent inquiry for complainant, or some agent representing him, and, failing to find the one or the other, said offer could not, on account of complainant's neglect, be made known to or refused by complainant or any agent representing him. And, further, that before said obligation matured, one Charles Reynolds, at the instance of respondent Warren, offered to pay complainant, Tinsley, in cash, $7,000 for the interest in the J. W. Warren estate acquired as aforesaid, and that complainant refused to receive the same, and that at such time said interest which complainant had bound himself to reconvey for $7,000 was reasonable worth $15,000.

It was further alleged that as a part of the contract and agreements between complainant and respondents, and contemporaneously therewith, complainant executed another paper, wherein he obligated himself as follows: 'And the said Tinsley hereby appoints the said M. Surratt his agent at Waco, with power of attorney to sell said lands at minimum rates, and said Tinsley shall not cancel such appointment without first appointing another agent at Waco, with power of attorney to sell said lands, and notifying said Warren of same. ' It was alleged that, acting in bad faith, and in disregard of such agreement, Tinsley revoked Surratt's power, and appointed another agent, and failed, neglected, and refused to inform or in any way notify respondents thereof, and that complainant thereby put it out of the power of respondent Warren to make the offer provided for in the obligation aforesaid.

After the evidence was all taken and filed, the parties complainant and respondents filed an agreement on 23d October, 1890, to submit the matter to arbitration under the laws of the state of Texas, in which agreement W. M. Sleeper was selected by complainant, Tinsley, as his arbitrator, and respondents selected A. J. Caruthers as their arbitrator; and it was further agreed that there should be no appeal from the decision of the arbitrators and the umpire chosen by them if they failed to agree, but that such decision shall be final and absolute, and returned to, filed in, and made the basis of, the final judgment and decree of the United States circuit court at Waco. This was signed by the parties and filed, and afterwards there was a trial had before the arbitrators, when both parties were present, and the arbitrators failed to agree. Thereupon R. I. Monroe was finally selected as umpire, and on June 8, 1891, the arbitrators and umpire filed their award, finding in favor of respondents, and that complainant, Tinsley, pay all the costs of court.

On November 19, 1891, the complainant filed a motion to set aside the award on the grounds that (1) the arbitrators and umpire were not sworn, as required by said statutes; (2) there was no new hearing after the selection of umpire, as provided by said statute; (3) the complainant had no notice of the hearing before the umpire, and had no representative before him; (4) the arbitration was abandoned before an award; (5) the complainant was induced to agree to the said arbitration by reason of the threats of the defendant H. M. Warren. This motion was resisted by the defendants upon the ground that the complainant had waived all irregularities by reason of his participation in the proceedings, and they moved the court to enter judgment upon the award. The case was heard on April 12, 1892, and resulted in a decree setting aside the award and in favor of the complainant for the amount claimed, with foreclosure of the deed of trust and order of sale. The defendants made a motion for rehearing which was overruled, and thereupon an appeal was taken, bond approved, and errors assigned, April 12, 1891.

D. A. Kelley, (Herring & Kelley, on the brief,) for appellants.

S. B. Hawkins, (Pearre & Boynton, on the brief,) for appellee.

Before PARDEE, Circuit Judge, and LOCKE, District Judge.

PARDEE Circuit Judge, (after stating the facts.)

The appellants contend in this court that they are entitled to a decree enforcing the award of the arbitrators, and, if this cannot be granted, then to a decree dismissing the bill upon the merits of the case. The written agreement to arbitrate provides that the submission and arbitration proceedings should be under the law in such case made and provided by the statutes of the state of Texas. The evidence in the case establishes that the arbitrators and the umpire were not sworn until after hearing and deciding the case; also that after the umpire was selected there was no notice given to the parties of any hearing, nor was there any hearing or rehearing had before the arbitrators and umpire; but, as stated by the umpire himself in his affidavit on file, 'the arbitrators gave him 'the court papers' and told him that 'they included all the evidence and depositions submitted to them,' and 'he then examined very carefully and thoroughly every paper in said case, including the said depositions, and, having arrived at a conclusion, reported to the said arbitrators that he 'was ready to decide the case.''

The Revised Statutes of the state of Texas bearing upon arbitration proceedings provide:

'Art. 46. On the assembling of the arbitrators on the day of trial, the justice of the peace or clerk shall administer an oath to each substantially as follows: 'You do solemnly swear that you will fairly and impartially decide the matter in dispute between the plaintiff and the defendants according to the evidence adduced and the law and equity applicable to the facts proved, so help you God."

'Art. 49. After hearing the evidence and arguments, if any, the arbitrators shall agree upon their award, and reduce the same to writing, specifying plainly their decisions, which award they shall file with the justice of the peace or clerk, as the case may be, and at the succeeding term of the court such award shall be entered and recorded as the judgment of the court with like effect of other judgments of such court, and upon which execution may issue as on ordinary judgments.

'Art. 50. If the arbitrators chosen as aforesaid cannot agree, they shall select an umpire with like

...