Black v. Rogers
75 Mo. 441
Mo.
1882
Check Treatment

I.

Sherwood, C. J.

The facts in the case show that the attorney for the plaintiff had either the actual or else the apparent authority to make the compromise. The plaintiff was distant but a few feet and in plain view while the compromise was being effected. During the progress of the negotiations, his attorney, not feeling altogether satisfied with a proposal on a certain point, went back to his client, held *448a conference with him and returning, said, that with a-named modification, his client would agree to the compromise. The desired concession was made by the defendants, and thereupon the compromise was drawn up and signed by the respective attorneys, Vest and Shackelford, judgment entered upon the agreement and the pending cause dismissed while the defendants with their attorneys were in the court room, and while, according to the testimony of Mr. Letcher, the plaintiff was also there present. There is no pretense that there was any fraud practiced on plaintiff in making the compromise, or that plaintiff’s attorney had no authority to make a compromise; and the law is settled that while a compromise made by an attorney without authority or in violation of his client’s commands will not be enforced to the client’s injury, yet, 'if the authority of the attorney be apparent, then his client will be bound, unless the compromise possessed such elements of intrinsic unfairness as to provoke inquiry or imply fraud. Wharton Agency, § 594, and cases cited; Weeks on Attorneys at Law, § 230. And the compromise in this case bears no-such indications, and it is evident the plaintiff either heard the compromise agreement made or else could have done so with a very little exertion on his part.

- II.

The judgment entered upon the compromise agreement, though neither formal nor full, was of like binding, force on the parties thereto, when rendered, as any other-judgment; and no appeal was-taken therefrom, or motion or application of any sort made to set that judgment aside,, though court remained in session, and plaintiff* came into town next day with a copy of the agreement which he had taken home with hind and read for the first time the night before, and complained to one of his attorneys that it did not correspond with what he had authorized. If’ this was the case then his neglect was inexcusable in failing to acquaint himself with the terms; and on being in*449formed what the terms of the agreement were, he should have taken the necessary steps promptly to have prevented the judgment, in consequence of the term going by, from hardening into final and irremediable conclusiveness. But no such steps were taken, and in consequence thereof, all the matters then controverted must be regarded as res judicata, and, therefore, no longer open to re-agitation.

III.

But the claim is made that that portion of the judgment relating to the appointing of persons by the parties to value the strip of land 'thirteen feet in width’, is not enforceable. This is the general rule as to the selection of persons to fix the valuation of the subject matter of the-contract. In a word, agreements to arbitrate are incapable of specific enforcement. Biddle v. Ramsey, 52 Mo. 153; Hug v. Van Burkleo, 58 Mo. 202; St. Louis v. Gaslight Co., 70 Mo. 69. But though this is the general rule-it is not the universal rule. The rule has its well ascertained exception. This exception occurs when the essence of the agreement does not consist in the fixing of a value by arbitrators, but the fixing of such value is merely subsidiary or auxiliary to the principal agreement. ' As, for example,, an estate is sold and the timber on a part to be taken at a valuation. In such case it is held that though the valuation cannot be made modo et forma, yet, that the court finds no difficulty, but in relation to such minor matters will substitute itself in the place and stead of the arbitrators, since the case is not one where no contract can be made out except through the intervention of arbitrators, but where a valid contract exists independent of their action.

In this case the parties to the compromise agreement can never be restored to their státu quo. That opportunity is forever gone, by reason of the judgment rendered. So far as concerns the matters embraced in that judgment they cannot be re-litignted. The main object of the contract and judgment of compromise was not the sale of a *450strip of land thirteen feet wide, but the adjustment of a matter hotly litigated, the settlement of a disputed boundary, and the absolute cessation of all litigious strife in respect thereto. But the disputed boundary has been irrevocably fixed by the judgment rendered upon the compromise agreement. A mere incident of that agreement is the fixing of the valuation of the paltry strip of land. In such circumstances, if we are to be guided by the authorities and sound reason, we cannot well hesitate. This evidently was the view taken of the matter by the circuit court, and we affirm the judgment.

All concur.