33 Mich. 127 | Mich. | 1876
The present controversy arises out of an arbitration of
Proofs were taken, and all the arbitrators were sworn on behalf of Beam, who was also a witness. Maeomber introduced no evidence, except from an accountant to prove the proper mode of making debit and credit entries. He was not sworn himself. Both bills were dismissed, and both parties appeal.
The first question presented is, whether any case is made for disturbing the award.
It is not competent to open an award made by judges
In Champion v. Wenham, Ambler, 245, it was held the whole award need not be disturbed where the matter complained of can be discriminated and settled by itself. And such seems to be the good sense of the matter.
The present case being one where each of the partners kept account of his own matters, each was bound in good faith to lay before the arbitrators his whole knowledge of the facts, and any willful omission to do this would have been fraud. The failure to have all proper evidence laid before them could hardly fail to have arisen from either fraud or mistake of one or both of the parties.
The items set up by Macomber, if correctly claimed by him to have' been omitted in the accounting, would have changed the balances very considerably. Their combined amount is two thousand dollars, and the allowance of either of them would have required the arbitrators to make an award against Beam beyond the face of the one thousand two hundred dollar note deposited; and the allowance of both would have about doubled the award.
Upon examining the record and proofs we find abundant evidence that the items out of which the seven hundred dollar claim arises were submitted to the arbitrators, and that they heard the parties, and upon investigation changed Beam’s statement by adding to it a charge against him of a further sum than he had credited. He swears, and the other testimony bears him out in it, that the additional charge grew out of a dispute which they examined into. There is nothing to show the arbitrators had not full means of knowledge, and Beam swears positively that he credited the whole money in controversy except the sum added by them against him. It also appears from the testimony of one of the arbitrators, that while Macomber found fault afterwards with the disallowance of the one thousand three hundred dollar item, he said nothing to him about this. Under all these circumstances we think there is nothing to show any mistake or misconduct of the arbitrators, or any oversight. And as Macomber has not seen fit to give his own testimony or show his own vouchers or accounts, it must be presumed there is no ground of complaint on this score.
The one thousand three hundred dollar item was also brought before the arbitrators and passed upon, and we have no reason to suppose there, was any mistake-here, for it was in the minds of all the parties, and it is not probable that any one of intelligence could have passed by such a mistake as is set up in regard to it. This sum, as well as other items, appears in Beam’s statement.in a form not according with the rules of book-keeping, but nevertheless in such a way as to lead to no difficulty, if compared with the sales
We think Macomber’s case entirely fails, and that the award is not one which has done him injustice. It is not necessary to consider the question of estoppel urged against him from his prosecution of the Beam note, since he has not proved-any defect to his prejudice.
As to the twelve hundred dollars which the bill was filed to have credited to Beam, the testimony is full, from arbitrators and witnesses, that it was never brought to the attention of any one during the arbitration. It escaped the attention both of Beam and of Mr. Cole, who drew off his account, and there is no doubt he made the payment as he claims he did. It is also evident that Macomber knew it and concealed his knowledge. He admitted as much after the award, to Mr. Wheeler and to Beam. He cannot, therefore, complain that he has been misled or damnified by Beam’s silence or neglect. It was as much his duty as it was Beam’s to show all that he knew of the true condition of the accounts, and intentional concealment is legal fraud between persons in such confidential relations.
Having failed to give his own explanation or to contradict Beam in any particular, we must accept the complainant’s theory of the transaction, and hold that he has, -without fault of his own, been deprived of a credit which he should have received. The original bill does not ask relief against the award except as to this item, and we have not any adequate means of correcting it in any other respect. Treating this as a separate item, and as a partnership debt
The decree of the circuit court; dismissing the cross bill must be affirmed, the decree dismissing the original bill must be reversed, and a new decree entered allowing to Beam the correction of the award by deducting such credit from the note and endorsing the note down to three hundred and seventy-one dollars and ninety-two cents as of its date, and restraining the collection of the balance, and granting costs of both courts to Beam, against Maeomber.