44 Mo. 383 | Mo. | 1869
delivered the opinion of the court.
The plaintiff brought suit in the Daviess County Court of Common Pleas against the defendants, upon a promissory note for about $500. Defendants admitted the execution of the note,
The court, upon motion of plaintiff, struck from the file the motion to confirm, for want of notice, whereupon the defendants withdrew the submission and all the papers connected with it. No reply to the supplemental answer is filed, and no further allusion is made to the matter during the trial. This seems to be the same award brought before the court at the present term in the case of Shores and Wife v. Bowen.
The cause proceeded to trial upon the allegation of fraud in procuring the note, and the verdict and judgment were for the plaintiff for its full amount, which judgment was reversed in the District Court. After the trial the defendants presented a bill of exceptions, which the judge refused to sign, certifying as his reason that it was untrue. It was then signed by three bystanders, but the judge refused to permit it to be filed in court for the same reason. Afterward, and within five days of the trial, the defendants took and deposited with the clerk four affidavits sustaining the bill of exceptions, which are annexed to and certified up as part of the record — the original bill of exceptions so sustained having been brought up by them and filed in the District Court — and come here with the rest of the record.
Counsel for the plaintiff seem.' to criticize this mode of bringing up the bill, but I do not see wherein it is not a compliance with the requirements of the statute. As this statutory mode of bringing up the facts of a case is unusual, and is liable to embarrass the appellate court by the necessity imposed upon it of deciding the truth of the bill, we take the opportunity of saying that it ought to be avoided if possible. To that end, the judge who presides at the trial would do well to state briefly wherein the bill is untrue, if he objects to it upon that ground, and to give the parties such assistance in making it up as his impartiality and his notes of
It is claimed by the plaintiff that the defendants, by withdrawing their motion to confirm the award, abandoned that portion of their answer. But it could not have that effect. The proceedings to obtain judgment upon the award form no part of this case, and should not have been mixed up with the record. When the parties agreed to submit the matter in controversy to arbitration, they thereby agreed that the suit be discontinued. Another tribunal was selected; and if the plaintiff did not voluntarily dismiss his case, the defendant could compel him to do so by motion setting up the submission, or by ansAver in the nature of a plea in abatement puis darrien. (Larkin v. Robbins, 2 Wend. 505 ; Ressequie v. Brownson, 4 Cow. 341.) The judgment sought upon the aAvard had nothing to do with this case, and the AvithdraAval of the papers pertaining to it can not be construed as an abandonment of any portion of the ansAver. I do not knoAV that I understand the views that prompted the action of counsel in the trial of the case. The allegation of submission and aAvard ayos neither replied nor demurred to ; and the parties went to trial upon that portion of the ansAA-er alleging fraud in the procurement of the note. They seem to have lost sight of the award altogether; the ansAver is upon the record with no reply; and we are unadvised Avhether the parties intended to retain or abandon it, or Avhy no further allusion Avas made to it. We Avill, hoAvever, examine it and see Avhat kind of defense it makes.
We have seen that a submission may be made to Avork a dismissal of the suit. It is not necessary that there be an aAvard, for the consent to arbitrate is in itself a selection of another tribunal and an agreement to transfer the cause to that tribunal, which agreement the court will carry into effect whenever it is properly brought to their notice. So far as its effect upon the
In the record before us this matter is not set up by way o£ abatement to procure a discontinuance of the suit. It is in the nature of a plea in bar to the merits — an answer setting up the award as a full defense against the claim. So that, this answer not being denied, if the award is a good one, it is a full defense, and a final judgment should have been given for the defendants. It is only necessary, then, to examine this part of the answer and see what kind of an award is pleaded. The submission seems to have been a good one, and, if properly brought before the court, would have procured a discontinuance of the suit. But the award, as set forth, is radically defective.
The answer states that the controversy was “submitted to Jas. L. Davis, Wm. B. Johnson, and Wm. L. Givens, as arbitrators,” etc., and that afterward two of said arbitrators, Johnson.and Givens, gave notice to the parties, proceeded to hear and examine the matters in controversy, made their award, signed the same, etc. No mention is made of Davis ; but it affirmatively appears that only two of the parties met and heard the case. The absolute requirement of the statute, that “all the arbitrators must meet together and hear all the proofs and allegations of the parties,” renders a less number absolutely incompetent to sit. This award, then, as set up in the answer, was no adjustment of the controversy, and the parties did well to disregard it. To the claim of the defendants in this court, that the submission itself abated the suit, and that the judgment should therefore be reversed, it may be further said that matter in abatement is, in general, waived by a plea and trial upon the merits. It would be unconscionable, in a case where the court has undisputed jurisdiction, to allow a
We must, then, see whether any error has been committed upon the trial. The plea of fraud, upon which alone issue Ayas joined, sets forth that the plaintiff and defendant Alice Lazalcre were ,partners in selling goods; that plaintiff proposed to sell to her his interest in the firm; that he represented it to be worth over $3,000, when, in fact, it Ayas worth hut $1,800, Ayhich he well knew; that the plaintiff was the active member of the firm, and his partner had no charge of the business — Ayas ignorant of its condition and of the nature of plaintiff’s interest; that plaintiff declined to take an inventory, claiming that he had pressing business in Virginia Ayhich he must attend to, and could not remain for that purpose, Avhen, in fact, he had no business calling him to Virginia; that defendant Alice was induced by these representations to agree to give for the interest of the plaintiff about the sum of $2,800, of which the note in controversy was a part; apd that she has paid everything but this note, and has paid more than the actual value of the interest purchased. In reply, the plaintiff denies in detail all these allegations, and avers that his partner, Alice, Avas represented in the business of the firm and in the purchase of the plaintiff by her father as her agent; that he had carried on the business before the plaintiff became' a member of the firm, and knew more about the goods than any one else.
Upon the trial the court gave the following instruction, at the instance of the plaintiff: “That the evidence in this cause, as to false and fraudulent representations charged in the ansAver, has failed to shoAv such false and fraudulent representations as constitutes any defense in larv to the note sued on.”
Other instructions, right and wrong, were given and refused; but it is Avholly unimportant to consider them. The only question necessary to consider is this action of the court in taking the case from the jury.
It is a principle well settled and always adhered to, that if there is any evidence tending to prove the issues of fact, the case must
The judgment of the District Court reversing that of the Common Pleas is affirmed and the causé remanded.