Gray v. Burden

55 Mo. 158 | Mo. | 1874

Adams, Judge

delivered the opinion of the court.

This was an action on a bond to abide the award of arbitrators. The defendants demurred to the petition, and the court sustained the demurrer and rendered final judgment thereon in favor of the defendants.

The petition was as follows: “ Plaintiff states that hereto- . fore, viz: on the 25th day of August, 1871, the defendants executed to plaintiff their certain writing obligatory herewith filed, by which they promised to pay plaintiff the sum of four thousand dollars upon the following conditions, viz: Whereas, there are unsettled partnership accounts between W. FI. Burden and W. G. Gray, to-wit: the partnership accounts of the firm of W. G. Gray & Co., and Burden & Gray, and whereas, said parties have this day entered into an agreement for the arbitration of said partnership matters: Now if said W. FL Burden shall, in all particulars, abide the award of said arbitrators, and pay any and all sums ordered by said award against said Burden, then this obligation to be void, otherwise to be and remain in full force ; that said award was on the 5th day of October, 1871, made by the arbitrators appointed under said submission ; that said award ordered said W. FI. Burden to pay said plaintiff the sum of $1,135.74; that on the 14th day of October, 1871, the plaintiff demanded said sum of the said Burden, but the said Burden refused and neglected to pay the same or any part thereof to plaintiff; that on the 16th day of October, 1871, the said Burden paid plaintiff on said award the sum of $800.00; that the balance of said award is the sum of $335.74 with interest, which is yet due the plaintiff and unpaid; wherefore, he prays judgment on said writing obligatory for the said sum of $335.74, with interest and srieh other relief as may be proper.”

The demurrer assigned the following causes: that the peti» tion does not state facts sufficient to constitute a cause of action against defendant, in this; said petition, does not aver that any matter was submitted to arbitrators in pursuance of the provisions of said bond; said petition does not aver that any judgment has been rendered upon the said award, or that the same is obligatory upon said defendants ; nor is it averred, that said other defendants have refused to pay said award; that the petition does not assign the specific breaches of the conditions of said bond, as required by law; said petition does not allege any specific damages to him being sustained by plaintiff, by reason of an alleged breach of the conditions of said bond.

This demurrer appears to be based merely on technical grounds. Under our code of practice, the petition is substantially good. It sets forth the bond which was given by the defendant, Burden, to abide the award of arbitrators; that the arbitrators were appointed and the matters in dispute submitted to them,and that they awarded to plaintiffs a sum of money, which was demanded of the principal, Burden, and he refused to pay the amount awarded, but paid a part of it and failed to pay the balance. The only breach of this bond that could be alleged, was the non-payment of the sum of money awarded to .the plaintiff. The bond was given to abide the award, and the failure and refusal by Burden to pay the sum awarded was a breach of the bond, and this breach was properly assigned.

Under this view, the judgment must be reversed and the cause remanded.

All the judges concur.