1 Posey 764 | Tex. Comm'n App. | 1881
Lead Opinion
The errors assigned are: 1. The court erred in overruling the objections of the defendants to the jurisdiction of the court.
2. In refusing to permit the defendant’s answer to be heard and treated as an answer, and in refusing to permit him to have a trial on the merits of the case.
3. The court erred in rendering judgment on the award in favor of the plaintiffs for the amount of the award.
4. The judgment should have been for the defendants for costs, etc.
5. The court erred in rendering judgment for plaintiffs without the award being offered in evidence and without proof of the execution of the same.
We will notice these assignments in their order:
1. The objection for the want of jurisdiction seems directed to the want of pleading and process as in ordinary suits. Under our statute neither pleadings nor process were required in arbitration cases. Pas. Dig., 66; McHugh v. Peck, 29 Tex., 145. Upon a comparison of the documents signed by the parties, and constituting the agreement to submit their differences to arbitration, it does not seem that any material difference exists between the agreement made and the requirements of the statute. The agreement described the parties, the subject-matter; arbitrators were selected; they, also, as they could do, selected an umpire. It was stipulated that the award of two should be decisive of the controversy. The filing with the clerk antecedent to
It was perfectly competent for these parties to waive the antecedent filing of the agreement, as they did by expressly providing for its .filing with the award, with the further agreement attaching to the proceedings all the qualities of the statutory award. A substantial compliance with the statute is all that is required to make it such. It is not to be held that proceedings intended to be without technical formalities should become quite as or more formal and technical than a suit at law. Hall v. Morris, 30 Tex., 283; King v. Gray, 31 Tex., 27; Forshey v. R. R. Co., 16 Tex., 526, 527; McHugh v. Peck, 29 Tex., 147.
■ The bill of exceptions shows that the court allowed an answer to be filed, but refused to allow testimony to support it. While our courts allow matters to be pleaded to set aside an award upon the hearing of the motion to enter it as a judgment, they also require that such matters shall be specifically charged, that the fraud, or misconduct or mistake made by the arbitrators, shall be set out distinctly. Payne v. Metz, 14 Tex., 60; Forshey v. R. R. Co., 16 Tex., 526.
Here misconduct is attempted to be charged, but how? In hearing unsworn testimony; but. what the testimony was, or whether it was material, we are not informed. Again, that the arbitrators allowed documents to be submitted to them after the case bad been closed. What documents? Were they material? How did they or were they calculated to affect the result? We think the court did right in disregarding this answer. It laid no different basis for the introduction of testimony. If further pleadings were refused, we
The third and fourth assignments question the propriety of the judgment as entered upon the award and do not require, further discussion. The award was certain, ifo other judgment could have been rendered.
The last assignment insists that the judgment should be reversed because the record does not show that the award was offered in evidence or proven. It is sufficient answer to this to say that, there being no statement of facts, we presume that all the necessary proof was made to support the judgment of the court.
We are of opinion there is no error in the judgment and that it ought to be affirmed, and so award.
Affirmed.
Rehearing
UPON REHEARING.
In this case the appellants have made a motion for rehearing upon substantially the same grounds discussed in their briefs on the original hearing, and which we have already considered, furnishing us with no additional authorities upon the subject, and we may add with no additional arguments. In deference to the zeal with which they urge upon us their views of the law of the case, we have carefully reconsidered our judgment, and are all the better. satisfied with its correctness. The vice of the argument of the counsel is illustrated by this excerpt from his brief: £1 The summary mode of settling disputes without petition and process provided by the statute is in derogation of the common law, and' should receive a strict construction.” And again: “The' statute on the subject of arbitration in departing from the • common law, and dispensing with petition and process, provides that certain things shall be done in the presence of,, and by a sworn, bonded and trusted officer of the court, the clerk, and it would be a dangerous doctrine, and entirely
Now the reverse of all this is the rule. In Green v. Franklin, 1 Tex., 501, Mr. Justice Lipscomb says: “The awards of arbitrators have always been looked upon with peculiar favor, as it is a conciliatory mode of adjusting disputes by persons specially chosen for that purpose. If the proceedings beforé them have the appearance of fairness to both parties, mere technical objections will receive no countenance from the court.” And again: “We will never presume anything against an award; so far from it, we are bound to support it by every presumption in its favor not contradicted by proof.”
So in Owens v. Withee, 3 Tex., 164, the same judge says, . . “ if the provisions • of the act (speaking of the act to authorize the settlement of disputes by conciliation or arbitration) have been substantially followed, the award should not be defeated for mere matter of defect of form. The object of the statute claims for it a liberal construction.”
So in Offeciers v. Dirks, 2 Tex., 470, it is said, “ the very objects intended to be effected by the act invoke a liberal construction of its provisions.”
That the parties to -an arbitration may waive the observance of any forms in the proceedings, or notice, or service, that some of its requirements are merely directory, we think is very obvious from this view of the law, and from the authorities cited in the opinion. It is unnecessaiy to repeat what we there said.
• But in the present case the appellants, after the expiration of the time allowed by law for filing an application for rehearing, have filed an amended motion, setting up other grounds why the judgment in this case should be reversed; grounds of objection, one at least of which was not raised in the court below, not assigned for error, and not even alluded to in the elaborate briefs of the counsel.
They merit but a very brief notice.
The first point made is that the award is not certain;-that the agreement does not state who are plaintiffs and who are
“ Mulhall & Scaling v. Beauchamp & Alexander.
“We, the arbitrators in this cause, find for the plaintiffs the sum of $7,300. “ H. H. Campbell.
“Thos. F. McEnnis.”
To say that from this award it cannot be determined who are plaintiffs and who are defendants, and in whose favor the award was made, with absolute certainty, is simply frivolous.
The second point is, that the agreement to arbitrate, not being signed by both partners of the firm of Mulhall & Scaling, the award is therefore null and. void.
We think this objection, even if it were sound, made now for the first time upon an amended motion for rehearing, after the expiration of the fifteen days, and not assigned for error, comes too late.
But it is not sound.
The agreement to arbitrate purports to be the agreement of Mulhall & Scaling, and to be signed for them by Joseph Mulhall.
Objection to his want of authority to execute the agreement ought to have been made before proceeding in the arbitration. It appears, from the transcript, that all the parties participated in the arbitration.
It is a general rule that each partner may bind the firm by any act that comes within the scope of the business of the firm.
Mr. Parsons says, in his work on partnership, as quoted by appellants, that to this general rule “ a seeming exception exists in relation to arbitration; ” but he shows very clearly that, though this has been generally held, the reasons for it as given are not sound. And the only reason which he seemed to consider of any weight is that until a, recent period the courts have been unwilling to sanction an agreement by which parties are compelled to renounce the well constituted tribunals which are open to all the public, fon one which the parties construct themselves, and which is
It will be seen from the citations we have made from our reports, that this reasoning elsewhere urged against the validity of a submission to arbitratition has no acceptance here. The courts have no jealousy of the arbitrators chosen by the parties. It is a mode of settlement of disputes provided by law, and favored by the courts. And there can be no good reason offered why a member of a partnership who has authority to bind the partnership in the purchase and sale of goods, in the settlement and collection of debts, in the execution of all simple contracts in relation to the partnership business, should be denied the power to settle matters of disputed account by reference to arbitrators.
We refer to Parsons on Partnership, page 192 and the notes; Story on Partnership, sec. 115, notes; Southard v. Starr & Steel, 3 Monroe, 447; Skillings v. Cooledge, 14 Mass., 14; Wilcox & Gamble v. Singletary, Wright (O.), 420; Taylor v. Coryelle, 12 Pa., 242; Hallack v. March, 25 Ill., 48. These cases all sustain the validity of a submission to arbitration by one partner for the firm.
We determine that the motion for rehearing must be overruled.
Rehearing refused.
Note.— An argument upon the motion for rehearing in this case, in addition to the briefs filed by Messrs. McCormick and by Walton, Green & Hill, has also been filed by other counsel for appellants, but as the counsel admits “he has not seen the opinion in the case, and may misapprehend the points upon which the case turns,” we may perhaps be excused from giving it consideration. Q.
