Witz v. Tregallas
| Decision Date | 09 January 1896 |
| Citation | 33 A. 718,82 Md. 351 |
| Parties | WITZ ET AL. v. TREGALLAS. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
Bill by Samuel R. Tregallas against Levi Witz, Isaac Witz, and W. T Biedler for an accounting. From a decree in favor of complainant, defendants Witz appeal. Affirmed.
Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, ROBERTS and BOYD, JJ.
W Pinkney Whyte and Charles Marshall, for appellants.
William A. Fisher and John C. Rose, for appellee.
On the 1st day of January, 1881, Isaac Witz, Levi Witz, William T Biedler, and Samuel R. Tregallas entered into articles of copartnership by which it was agreed what each partner was to contribute to the capital, what interest thereon was to be paid, what share of merchandise on hand each was to receive in the event of dissolution of the firm, and that the copartnership should continue for the term of three years. It was further agreed that, after paying all expenses and losses, the appellee was to receive one-tenth of the profits, and that the remainder should be divided equally between the other three, but if the appellee furnished additional capital, from $2,000 to $15,000, within six months from the expiration of each year, his profits should be increased at the rate of 1 per cent. per thousand. A supplemental agreement was entered into by which the copartnership was continued until December 31, 1886, on the terms mentioned in the original agreement, excepting with reference to the division of profits, which was changed so that Levi Witz and W. T. Biedler were each to receive 31 1/4 per cent., S. R. Tregallas 25 per cent., and Isaac Witz 12 1/2 per cent. On December 31, 1887, another change was made, by which it was agreed that, for two years from January 1, 1888, Isaac Witz was to receive 10 per cent. of the net profits, up to $40,000, as his special and full interest, and then the profits were to be divided as follows: To Levi Witz and W. T. Biedler, each, 36 1/4 per cent., and to S. R. Tregallas 27 1/2 per cent. The partnership continued until December 31, 1889, when it was finally dissolved, and the assets were turned over to the appellants and W. T. Biedler, as liquidating partners, who proceeded to realize on them. After a large part of them had been collected and distributed, differences arose between the members of the firm, and on February 18, 1893, an agreement was entered into "to submit said differences to arbitration." It was therein stated that Christian Devries was satisfactory, as an arbitrator, to three of the partners, and, if Mr. Tregallas desired two, he was authorized to name one, and in case he did, and the two could not agree upon a conclusion, they could select an associate, and "the majority decision shall be the unanimous decision." The arbitrators were required to write their names on the agreement, as evidence of their acceptance. It was further provided that either party could present his views, in writing or orally, and offer such evidence as he deemed advisable. Mr. Tregallas exercised the right to name an arbitrator, and selected J. Frank Supplee. Messrs. Devries and Supplee accepted the appointment, and entered upon their duties. Being unable to agree, they selected Daniel E. Conklin as their associate. Messrs. Supplee and Conklin signed an award, which Mr. Devries declined to concur in, by which it was determined that the assets of the late firm of Witz, Biedler & Co. should be divided between the respective partners in the proportions of 32.41 per cent. to Levi Witz, 27.34 per cent. to Isaac Witz, 24.06 per cent. to W. T. Biedler, and 22.19 per cent. to S. R. Tregallas; and the following provisions were also made in said award: The award was acceptable to Messrs. Biedler and Tregallas, but not to the Messrs. Witz, who declined to abide by it. Mr. Tregallas filed the bill in this case against the other three members of the firm, praying (1) that the defendants should be required to account with him for all the assets which they had received, as liquidating partners, of the late copartnership, including the sum of $4,636.61, specially mentioned in the award; (2) that there might be an accounting and a distribution of the assets in the manner prescribed by said award; and (3) for general relief. William T. Biedler admitted the allegations of the bill, but the Messrs. Witz filed an answer, in which they set up a number of objections to the enforcement of the award. The court below passed a decree referring the case to one of its auditors and masters to state an account in accordance with the terms of the award. From that decree this appeal was taken by the Messrs. Witz.
Before considering the main reasons relied on by the appellants for setting aside the award, it may be well for us to pass upon what might be termed the preliminary and technical questions that have been urged in this court. It is said that there is no jurisdiction in a court of equity, in this state, to enforce an award. The learned counsel for the appellants did not rely, for this contention, upon any decision in Maryland sustaining that portion, but rather upon the absence of all precedents in this state to justify a court of equity intervening to enforce the specific performance of such an award. If that be conceded, it is not conclusive against the right to do so when a proper case is presented. If we assume that this award is valid, we can see no reason why a court of equity cannot require an accounting and a distribution of the assets of the firm between the partners on the terms established by it. The defendants were bound to account to the plaintiff, and the arbitrators having determined the proportion of assets that each partner was to receive, such accounting should be in accordance with the award. It is conceded, in the answer of the appellants, that "an accounting under the supervision of this court is necessary in order to ascertain the respective rights of copartners." Whether the distribution be made in the proportions fixed by the award, or otherwise, it is evident that a court of equity must take charge of the settlement, to do full and substantial justice between all partners, as they cannot agree among themselves. It might well be questioned whether this is, strictly speaking, a bill for the enforcement of a specific performance of the award,--whether it is not simply a bill to settle the affairs of the copartnership, using the award for the purpose of determining the proportions the partners are to receive, and such other matters as it disposes of. But there is no longer any doubt about the right of a court of equity to exercise this power, when the thing ordered by the award to be done is such as a court of equity would specifically enforce, if it had been agreed upon by the parties themselves. Morse, Arb. 603; Russ. Arb. 563, and cases cited by them.
It is also contended that the award is void because Mr. Conklin failed to sign his name on the agreement. It is true that there is a provision that "the said arbitrators shall write their name or names on this article of agreement, as evidence of accepting the same," but there is no doubt that Mr. Conklin was duly selected by the other two, and that, in point of fact, he did accept, with the knowledge and consent of the partners. He ought to have signed his name, but his omission to do so did not and could not possibly prejudice or injure the appellants. His signature was not the only evidence of his acceptance of the appointment, and to set aside an award for such an omission would be far more technical than is required or justified either by authority or reason. The testimony of Mr. Conklin shows that his failure to sign his name was entirely an oversight, and not because there was any question of his acceptance.
It is further alleged that the three arbitrators did not act together, and that it was in effect simply an award of the two who signed it, without their making a proper effort to have all three pass upon and agree to the matters submitted to them. The evidence shows that Messrs. Devries and Supplee had a number of meetings, during a period of time covering about two months, and heard considerable evidence and argument. Being unable to agree, they finally selected Mr Conklin. After his appointment, all three met at different times, and the partners were requested to come before them. All, except Mr. Isaac Witz, appeared, and were interrogated by (or, at least, in the presence of) the three arbitrators. Mr. Levi Witz informed them it would not be necessary to have his brother...
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