48 Kan. 153 | Kan. | 1892
The opinion of the court was delivered by
John M. Anderson, who was engaged in constructing a court-house for Clark county, obtained from Burchett & Fraley brick to be used in the construction of the building. A dispute arose between them as to the quantity and price of the brick used, and they agreed to submit the matters in controversy to arbitration, the award to be made a
Only the legal objections to the making of the award a rule of the district court have been brought up for review. The first objection is, that all the arbitrators did not exercise their judgment and discretion in deciding the questions that arose during the proceedings. It appears that Kennedy and Deeds were first selected, and that they chose Whitfield, the third arbitrator, who acted as chairman of the board, and was spoken of as an “umpire.” Kennedy testified that it was the duty of Whitfield to give the deciding vote when objections were raised upon which there was a difference of opinion between himself and Deeds. Once or twice there were dif
Another objection is, that one of the arbitrators was not disinterested and impartial, but was indebted to one of the contesting parties, and had counseled with him respecting the subject-matter of the controversy. Kennedy was indebted to Burchett to the extent of $50; but mere indebtedness of an arbitrator to one of the parties does not disqualify him. (Wallace v. Carpenter, 13 Allen, 19.) The indebtedness was small, and it is not shown that it was insecure, or that its payment •depended to any extent on the result of this controversy. The interest of Kennedy, if it can be called one, was so remote and contingent that it could not, we think, have influenced him in his action, and nothing was shown in his conduct to indicate partiality or corruption.
The other objection made to Kennedy is untenable. It appears that some time prior to the arbitration Burchett mentioned to Kennedy that Anderson owed him for the brick used in building the court-house, and Kennedy suggested to him to file a lien on the building. The matter of lien, however, was not a subject of controversy, and nothing in the testimony •shows that Kennedy had any knowledge or preconceived opinion regarding the indebtedness existing between the parties to this proceeding. The plaintiff in error learned the facts which he now claims disqualified Kennedy as an arbitrator during
Another objection is, that the plaintiff in error was absent from the hearing a portion of the time on account of a stipulation made between the attorneys. It is contended that an agreement was made between counsel that, if either party could not be present at a certain time, the case should be continued, and that neither should take advantage of the absence of the other. The testimony, however, shows that the agreements of counsel,, whatever they may have been, were not reduced to writing, nor was there in fact an agreement to continue the cause. Negotiations were had between the attorneys respecting the continuance, but they were not of such a character that the courts can recognize them, or upon which either attorney had a right to rely. More than that, when the board resumed the hearing of the case at the appointed time, there was no application for a continuance, nor any showing made of the misunderstanding which had arisen with reference to a further continuance of the cause. The application for a continuance should have been presented to the arbitrators by the plaintiff in error, and having failed to make such application, it is now too late to raise objection.
The court permitted an amendment to the plaintiff’s petition or statement of his claim, so as to correspond with the award made by the arbitrators. Although an objection is made to this ruling, the practice is permissible.
The judgment of the district court will be affirmed.