70 Minn. 248 | Minn. | 1897
The parties being partners in business, the plaintiff brought this action to dissolve the partnership, for an accounting and for a winding up of the partnership business.
After the cause was at issue the parties entered into a common-
After all this had occurred the plaintiff served a supplemental complaint, alleging the submission to arbitration and the award and practically turning the action into one on the award. Defendant answered the supplemental complaint, setting up the defense, among others, in substance that, after the award was made the parties mutually agreed to repudiate it and go on with the trial of the action.
The case seems to have gone to trial by the court on the issues tendered and made by the supplemental pleadings, and the court found that the award had never been accepted or recognized by the parties and that, subsequently to the award, the parties by mutual agreement had placed the case upon the calendar of the court for trial; also, that the allegations of the supplemental complaint were not sustained by the evidence; and, as conclusions of law, ordered
“That the said cause under the supplemental complaint be and the same is dismissed. That the cause stand for trial upon the original pleadings in said cause.”
The law is well settled that when parties have entered into an agreement to refer disputed claims to arbitration, and an award has been made by virtue of such agreement, it is entirely competent for them to waive or repudiate such award by mutual consent. Girdler v. Carter, 47 N. H. 305; Rollins v. Townsend, 118 Mass. 224. And if it be repudiated by the mutual consent of the parties, who refuse to be bound by it, it is too late for one of them to undertake to set it up and rely upon it against the other. Morse, Arb. 532. The act of the parties in mutually agreeing, after the award was made, to submit this action to a referee for trial would of itself, in the absence of an express agreement to the contrary, amount to a waiver of the award. Rollins v. Townsend, supra. Counsel for the plaintiff cites no case to the contrary and we think none can be found. Of course, we are speaking of a common-law submission. What may be the rule in case of a statutory submission, which is really a proceeding in court, we need not consider.
It is also contended that, conceding that it was competent for the parties by mutual consent to waive or repudiate the award, yet they could only do so in writing. We are not aware of any such rule of law and are referred to no authorities, to that effect. An oral agreement to submit to arbitration is good at common law. 2 Am. & Eng. Enc. (2d Ed.) 541; Morse, Arb. 50. Certainly, the evidence of a waiver or repudiation of the award need not be of any higher order than that of an agreement to submit.
Certain rulings on the trial are assigned as error, but it is unnecessary to consider any of these except to say that there was no error in admitting evidence as to what took place between plaintiff and his attorney in reference to waiving the award and referring
Order affirmed.