55 Iowa 722 | Iowa | 1881
— I. The petition alleges that plaintiff is the absolute owner of the cattle, and that defendant holds the possession thereof under a certain lease or written contract executed by the parties. The instrument stipulates that defendant shall “ take the very best care ” of the cattle, prescribes the manner of their treatment and management, and the division of their increase and profits between the parties. At the end of two years the cattle are to be returned to plaintiff. It also provides that, if defendant fails to perform the terms of the contract, it shall become null and void. It contains the following condition: “At any time if any question is raised, as to non-fulfillment of any of the above mentioned items of this contract, it shall be left with Mr. Des Larzes, of Portland township, for decision.”
The petition alleges that the condition of the lease being violated the instrument became null and void, and was terminated by arbitration; that plaintiff applied to Des Larzes, named in the contract, to determine the question whether the
Tbe answer admits plaintiff’s ownership of tbexcattle, and that defendant bolds possession under a lease as set up in the answer, and alleges that tbe arbitration was bad without defendant’s knowledge or consent and in fraud of bis rights; that tbe findings of tbe arbitrator are erroneous and untrue, and that defendant has performed tbe conditions of tbe lease.-
At tbe trial tbe plaintiff introduced tbe lease in evidence, and gave testimony in bis own behalf to tbe effect that tbe cattle were not taken care of by defendant as required by tbe lease; that he so informed defendant, and made propositions in regard to tbe care of tbe cattle, which were not accepted by defendant, and thereupon informed defendant that be “ was going to raise the question of tbe condition of the cattle under tbe contract.” Thereupon be applied to Des Larzes, who found and decided that tbe conditions of tbe contract were not complied with- by defendant, and tbe lease was, therefore, void, and defendant should deliver tbe cattle to plaintiff. There was no evidence tending to prove that defendant was present when the matter was investigated by Des Larzes, and that be assented to tbe arbitration or participated therein, or was notified therof by plaintiff or Des Larzes.
It clearly apjrears that plaintiff bases his right to recover in the petition upon the decision of the arbitrator. Whatever averments are found in the petition as to the breach of the contract are simply pleaded as inducements to the decision of the arbitrator. The issue presented in the pleadings involves alone the arbitration and its sufficiency to authorize plaintiff to recover.
It is very plain the parties understood that this issue alone was presented to the Cii*cuit Court. The defendant introduced no evidence at the trial, and all the evidence on the part of plaintiff as to defendant’s breach of the contract evidently was introduced as an inducement to the-arbitration. There can be no doubt that the cause . was not tried in the court below upon an issue involving the breach of the lease by defendant. We must regard the issues upon which the case was tried in the Circuit Court, and can decide it upon no other.
In our opinion the judgment of the Circuit Court ought to be
Aeeirhed.