Anderson v. Miller

108 Ala. 171 | Ala. | 1895

HEAD, J.

When the plaintiff introduced in evidence, as a basis for the award upon which he sued, a submission to arbitration, which disclosed that the arbitrators were required to make an award in writing, under their hands and to deliver to the parties a copy thereof on or before the 15th day of February, 1892, it became necessary for him to establish, not only that an award had been made, but that a copy thereof had been delivered to the defendant within the time prescribed, unless it appeared the stipulation had been waived. It is perfectly competent for parties, who submit their differences to arbitration, to limit the duration of the authority of the arbitrators. — 1 Am. & Eng. Enc. Law,p. 688. So also may they prescribe the manner in which the award must be published or delivered, and while, in the absence of such stipulation, actual delivery is not necessary, yet if the submission requires delivery of the original award, or a copy, then in the absence of a waiver, nothing short of a compliance with the terms of the agreement will satisfy the requirement. — 1 Am. & Eng. Enc. Law, p. 705. The r-ght of-the parties.and the duty and authority of the arbiirators are to be measured by the terms of the submission. — Pratt v. Hackett, 6 Johns, 14.

When actual delivery of the award, or a copy is required, an informal notice to one of the parties by one of the arbitrators, that an award has been made, even when accompanied by a statement of the contents thereof, would not be a sufficient compliance, as to such party, with the terms of the submission, to constitute a valid award. — Buck v. Wadsworth, 1 Hill, 321. Even after an award is drawn up it is, until delivery, under the control of the arbitrators, who may, in their discretion within the time limited, re-open the case and hear other evidence. — 1 Am. & Eng. Enc. Law, p. 681. So. that, until the award is delivered, there is lacking one element of completeness and finality of decision, and in- ‘ formal information- to a party, that the arbitrators had then made a decision, which was still within their control, and subject to alteration, would fall short of showing an irrevocable award, binding as their last judgment. This would more clearly be the case, where, as here, the final decision of the arbitrators was to be evidenced in a particular manner. We do not think, therefore, that the notice which the defendant received upon the street, from one of the arbitrators, of their then action, tended, in any manner, to show either a compliance with the submission, in • respect of delivery of a copv of the award, or a waiver of that stipu]ation. Nor could the suggestion of error, which the'defendant testifies he then made to the arbitrator, nor his request for an opportunity to adduce evidence of such alleged error, be treated or construed as an affirmation or recognition of the completeness of the award, nor as a waiver of any right guaranteed by the submission. On the. contrary, his action proceeded entirely upon the idea that the case was still under the control of the arbitrators and that their decision was not then final and irrevocable. If the arbitrators made the promise to the defendant, to which he testifies, that fact would seem to furnish stronger reason why he should be formally furnished with a copy of the award, under the hands of the arbitrators, as evidence of their determination not to re-open the case, and to notify him that he had been finally adjudged liable to the ocher party, in a sum of money, which must be presently paid. We do not find, therefore, any evidence in this record, which would authorize the inference that the defendant had waived his right to a copy of the award. Charges 2 and 7 requested by the defendant should have been given.

The plaintiff testified to a delivery of a copy of the award to the defendant in due time, while the defendant testified he had never received, nor seen, either the original award nor a copy, until after the suit was brought and he appeared to defend the same. This conflict presented an issue of fact to the jury, the decision of which will control the case.

It was not necessary j however, for the plaintiff to show that 'he himseif had also received a copy of the award. He had sued upon it, thereby affirming its validity, and it was of' no concern to the defendant, in this case, that the arbitrators had not delivered a copy to the plaintiff. Furthermore, it appears, without dispute, that the original award was delivered to the plaintiff, within the stipulated time and received by him without objection or demand for a copy. This was a waiver by him of compliance with the stipulation according to its exact terms, if indeed it was not a substantial compliance therewith. — Sellick v. Adams, 15 Johns, 197. Charges 8 and 4 requested by the defendant were properly refused.

'This disposes of the questions of merit in the case. The eighth plea constituted no defense to the action, and it should be eliminated from the record by a demurrer before another trial. We are unable to perceive that there is any mistake of fact, apparent upon the face of the award, and none has been pointed out in the brief of appellant’s counsel; nor do we think there is any merit in the contention that the award shows it does not finally dispose of all the matters submitted. As the case is presented in this record, the controversy lms within a narrow compass, and what we have said will be a sufficient guide, upon another trial, for a clear presentation of the issue to the jury, unless there is a material change in the evidence.

Reversed and remanded.