Jones v. Thomas

120 Wis. 274 | Wis. | 1904

MaRsiiall, J.

Tbe questions presented by appellant’s counsel for consideration, with supporting authorities, come down to this proposition: Did tbe parties to tbe arbitration agreement stipulate therein that tbe judgment against appellant should be discharged regardless of tbe decision of the arbitrators, tbe indebtedness evidenced thereby to be submitted to them and so far as .valid to be merged into the award? Counsel for appellant contends for tbe affirmative. If that view be right and appellant’s conduct in respect to tbe award has not so soiled his bands -as to preclude bis appealing with favor to a court of conscience, tbe complaint states a good cause of action to prevent tbe inequitable use of a judgment, under tbe doctrine of Johnson v. Huber, 106 Wis. 282, 284, 82 N. W. 137, and similar cases, and tbe answer does not state a good defense thereto.

That tbe submission of tbe subject-matter of a pending suit, or one that has ripened into a judgment which is still tbe subject of contest upon appeal or otherwise, to arbitrators to determine what should justly be rendered to tbe judgment creditor on account thereof, nothing appearing in tbe submission to tbe contrary, ipso facto displaces such pending* litigation or judgment, is elementary. Tbat result is not effected by mere operation of law upon tbe fact of submission, but by tbe terms of tbe agreement itself. Tbat is to say, sucb an agreement is supposed to include a stipulation tbat it shall bave tbat effect.. Dolph v. Clemens, 4 Wis. 181, 185; Sohns v. Sloteman, 85 Wis, 113, 116, 55 N. W. 158; Bigelow v. Goss, 5 Wis. 421, 423; Grosvenor v. Hunt, 11 How. Pr. 355; Van Slyke v. Lettice, 6 Hill, 610; Boyce, Ref. & Arb. 289. It will be observed by an examination of those authorities that whether in a case like tbe one before us tbe submission to arbitrators works a discharge of tbe judgment dr constitutes an enforceable agreement to discharge it, depends upon tbe terms of tbe agreement. Where tbe subject-matter of tbe suit closed by a judgment is subsequently submitted to arbitrators and nothing is said in tbe agreement to tbe contrary, it is, as before indicated, presumed tbat a complete displacement of tbe judgment was intended, tbe understanding being tbat tbe award shall take its place; but where tbe agreement clearly shows tbat legal proceedings are only to be stayed pending tbe arbitration, or tbat tbe judgment already rendered shall abide tbe decision of tbe arbitrators, it is to be given tbat effect only. Sohns v. Sloteman, supra; Boyce, Ref. & Arb. 155. In Grosvenor v. Hunt, supra, tbe subject-matter of an action which bad ripened into judgment from which an appeal bad been taken, was submitted generally to arbitrators, nothing being said about tbe effect thereof upon tbe judgment or appeal. Tbe agreement was construed to contain a stipulation for a dismissal of tbe appeal and a discharge of tbe judgment. In Miller v. Van Anken, 1 Wend. 516, in a situation sucb as last described, the subject-matter of tbe litigation was submitted to arbitrators with an express agreement for a dismissal of the appeal, and it was held tbat tbe judgment remained in force subject to tbe action of tbe arbitrators. In Van Slyke v. Lettice, supra, in a similar situation, tbe agreement to arbitrate contained a stipulation that “all further proceedings in the suit are hereby stayed and ended,” and it was held that the parties intended that the judgment creditor should loot solely to the award of the arbitrators for relief.

It is a significant feature of the agreement before us that the subject-matter closed by the judgment was not expressly, and perhaps not at all, submitted to the arbitrators. The indications are that the rights of the parties, independently of errors going to the validity of the judgment, were not in controversy, and that such validity, not the subject-matter upon which the judgment was based, was the matter in dispute. That is, that the subject-matter of the proceedings challenging the legality of the judgment, not the subject-matter of the respondent’s claim closed by the judgment, was submitted to the arbitrators. In that view it seems quite clear that the parties agreed that the judgment itself should abide the decision of the arbitrators as to its validity, and should be discharged upon performance by the judgment debtor of the commands of the arbitrators as to him. The agreement will reasonably bear that construction. Not only does it show that the validity only of the judgment was submitted to the arbitrators, but the clause of the agreement in respect to a discharge thereof follows the clause providing for performance by the appellant of the award of the arbitrators, as if performance were to precede the discharge. That is in perfect harmony with the idea that the validity, as distinguished from the subject-matter, of the judgment, was submitted to the arbitrators. That the parties themselves so treated the agreement is evidenced by the fact that they joined in. fully presenting their matters of difference to the arbitrators, leaving the judgment undisturbed. That the arbitrators so treated the agreement is evidenced by the fact that they in effect held that the judgment was valid and provided that it should be discharged upon appellant’s paying respondent a sum of money named by tbem. In short, tbe contract fairly admits of a construction that tbe judgment should abide the aivard of tbe arbitrators. It was apparently so construed by tbe parties themselves and by their chosen triers. That practical construction, under familiar rules, may well be deemed sufficient to incline the court to the same view, since it is perfectly reasonable and equitable. The construction to be put upon an ambiguous contract may properly be and is often ruled by the meaning the parties thereto, in the execution thereof, attributed to the same. Sigerson v. Cushing, 14 Wis. 527; Nilson v. Morse, 52 Wis. 240, 9 N. W. 1. It is rightly said that “such rule' is founded upon manifestly just principles.” Janesville Cotton Mills v. Ford, 82 Wis. 416, 430, 52 N. W. 764; Hosmer v. McDonald, 80 Wis. 54, 49 N. W. 112; District of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585; Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057.

Our conclusion is that the parties to the arbitration contract agreed therein that the judgment against appellant should abide the decision of the arbitrators and be discharged upon his paying thereon the amount ordered by them. That being the case, manifestly appellant has no standing in a court of equity to enjoin the enforcement of the judgment, so long as he is in default in regard to carrying out the award made against him. Equitably, at least, the judgment should stand as security for the amount of the award, and be en-forcible to that extent.

By the Court. — The order is affirmed.

SiebecKeb, J., took no part.