35 Mo. App. 355 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action for the value of certain services, alleged to have been rendered by the plaintiff for the defendant at his special instance and request. The petition contained four counts. The answer was a general denial. The parties entered into a stipulation submitting the controversy to an arbitrator. He made an award in favor of the plaintiff.. The defendant thereupon filed a motion to vacate the award, on the ground that it was the result “of a fraudulent combination and of undue influence practiced between the plaintiff” and the arbitrator ; charged that the award was in fraud of the rights of the defendant and the result of a combination and conspiracy to bring about the result as reached by the arbitrator. The motion was supported by the affidavit of the defendant alone. Most of the statements in his affidavit were made on information and belief. They, except one, were met and repelled by counter-affidavits.
The fact not thus repelled, and which is admitted, is that, at the time when the submission was made and when the hearing before the arbitrator took place, the attorney for the plaintiff was counsel for the arbitrator in some other matter the nature of which is not disclosed. The defendant’s affidavit shows that he did not know this fact at the time when he agreed to the submission, but it does not state that it did not come to his knowledge before the hearing took place before the arbitrator, and the record shows that a considerable time elapsed between the twro events. If he knew of the fact before the hearing, he should have objected to it, and brought
On the other hand, the affidavit of the arbitrator and also that of the plaintiff show that the defendant
The appeal is so plainly without foundation that the judgment of the court overruling the motion to vacate the award, affirming the same and rendering judgment thereon, will, in accordance with the prayer of the respondent, be affirmed with ten per cent, damages.