50 So. 432 | Ala. Ct. App. | 1912
The transcript in this case presents something over 17 pages of pleadings, and the court’s rulings thereon, upon which many assignments of error are predicated, but a careful consideration of the entire record shows that the appellant, as plaintiff in the court below, was not injured by any of the court’s rulings on the pleadings or prevented from putting his entire case before the court and jury. Nor was the plaintiff injured in being required to take issue on any plea setting up illegal or immaterial matter of defense. We will not then pause to consider that part of the case.
The real questions presented go to the vitals of the case, and we will confine our discussion to those questions. They relate to the action of the court in giving
The plaintiff brought his suit in assumpsit on the common counts, and bases his right to recover on a series of transactions with the defendant originally growing out of the purchase by the plaintinff from the defendant of a yoke of oxen, by the terms of which contract of sale the plaintiff agreed to cut and haul logs for the defendant at a certain price. Part of the earnings as they respectively became due were to be retained by the defendant and applied as a credit on the purchase price of the oxen. The transactions involve a return of the oxen and divers and sundry differences in connection with the proper amount to be credited for the logs cut, charges for merchandise sold by plaintiff to defendant and his hands at plaintiff’s commissary, and. charges for board furnished to the hands of the defendant by the plaintiff. Together with other defenses interposed, the defendant set up in bar of plaintiff’s action several pleas averring that the plaintiff and defendant had submitted to arbitration all the matters in controversy between them for which suit had been brought by the plaintiff, and alleging that an award had been made before suit was brought. It is manifest from an examination of the evidence set out in the bill of exceptions that the court gave the general charge requested by the defendant, on the theory that the evidence without conflict established the allegations of these pleas.
It is the plaintiff’s contention on this proposition that he withdrew from the arbitration agreed upon and revoked the authority of the arbitrators before an award was .made. This is controverted by the defendant, who
Tbe authorities are in some conflict on tbe right of a party to withdraw and revoke after submission to arbitration, but tbe rule, supported by wbat seems to be by far the greater weight of tbe better considered authorities, is that either party may revoke a submission to arbitration at any time before an award is made and published, where the submission is not made a rule of tbe court, or otherwise regulated by statute; that is, when, as here, tbe arbitration is a common-law arbitration, then either party may revoke before final award, and tbe remedy of tbe other party is an action on a breach of tbe agreement to submit, to recover damages, if any, caused by tbe revocation of tbe other party.— O. & W. Mortgage Saving Bank v. American Mortgage Co. (C. C.) 35 Fed. 22; Allen v. Watson, 16 Johns. (N. Y.) 205; Jones v. Harris, 59 Miss. 214; Sidlinger v. Kerkow, 82 Cal. 42, 22 Pac. 932; Leonard v. House, 15 Ga. 473; Davis v. Maxwell, 27 Ga. 368; Paulsen v. Manske, 24 Ill. App. 95; s. c., 126 Ill. 72, 18 N. E. 275, 9 Am. St. Rep. 532; Peters v. Craig, 6 Dana (36 Ky.) 307; Brown v. Leavitt, 26 Me. 251; Donnell v. Lee, 58 Mo. App. 288; Wright v. Cobleigh, 21 N. H. (1 Foster) 339; Norfleet v. Southall, 7 N. C. (3 Murphy) 189; Wood v. Finn, 1 Clark (3 Pa. Law J. 31) 396; Erie v. Tracy, 2 Grant, Cas. (Pa.) 20; Johnson v. Andress, 5 Phila. (Pa.) 8; Huston v. Clark, 12 Phila. (Pa.) 383;
It is not disputed but that all of the matters in controversy involved in the suit were submitted by an oral agreement of the parties to arbitration and were considered by the arbitrators and a written award rendered by the arbitrators subsequent to the bringing of this suit by the plaintiff. It is contended by the defendant that prior to- the written award, and before suit brought, a verbal award was rendered, and that plaintiff’s suit- is barred because of this award. The plaintiff’s position is that the verbal award was not, in fact, or in law, an award, and that he withdrew from the arbitration and revoked the authority of the arbitrators before the final award was made.
The plaintiff testified on the trial that, on the same day the arbitrators first met and heard the evidence, one of the arbitrators came to him later in the day and told him that they had decided that the defendant owed him 25 cents, “but that they would like to have some further testimony from me (plaintiff), and they would set another day for me to bring another witness before them.” Afterwards another day was set by the arbitrators for hearing the evidence, and two witnesses were examined by them. Only two- of-the three arbitrators were present at this hearing; the arbitrator select-
The evidence of the plaintiff, construed in connection Avith all of the testimony, afforded ample grounds for the jury to ascertain that, at the time the plaintiff signified his intention to have nothing more to do with the proceedings, no valid award’had been made by the arbitrators. There can be but one award under a submission, and that must he entire and complete within itself and final in its nature; that is, it must express the final determination of the arbitrators on all the matters submitted without reserving future authority to the arbitrators. This requisite of finality is essential to a valid award.
■ But the verbal delivery of the award, in the light of the tendencies of some of the evidence in this case, was not such as to make it a final award. The plaintiff testified that the arbitrator who' informed him verbally of the finding also and at the same time stated to him that “they would like to have some further testimony from me (plaintiff) and they would set another day for me to bring another witness before them.” The evidence is without conflict that a subsequent day was set, and other additional witnesses were examined by the arbitrators and another award made. One of the arbitrators testified that at the request of the plaintiff they held the award open at this time to hear additional testimony. It would make no difference, so far as the finality of the award is concerned, at whose request it was “held open,” if in fact it was held in abeyance and future authority reserved by the arbitrators. An award is bad for want of finality if it leaves any act of a judicial nature to be done in the future. • The retention of future judicial authority by the arbitrators at the time of verbally notifying the plaintiff of the finding of the arbitrators on the day of the first hearing would destroy the requisite finality of the decision, and the ¿ward would be invalid as such for this reason. The following authorities directly or by close analogy support this proposition. — McCrary v. Harrison, 36 Ala. 577; Huston v. Clark, 12 Phila. (Pa.) 383; Id., 9 Wkly. Notes Cas. (Pa.) 316; Rhodes v. Hardy, 53 Miss. 587; Gregory v. Pike, 94 Me. 27, 46 Atl. 793; Lell v. Hard
Tlie only other proposition is ivhether or not the withdrawal of the piaintiff from the proceedings would operate as a revocation. This question is one principally, and properly, of the intention of the parties, to he gathered from the statements and actions surrounding the transaction and connected with it. An express “revocation,” or a revocation in law, may be made, where the submission is by parol, by one of the parties to the submission' declaring verbally that he will no longer abide by the agreement of submission. — Morse on Arbitration and Award, 229, 232. It has never been held that the revocation of a common-law submission by parol shall conform to any particular formality provided a clear intention or notice to the arbitrators to revoke can be gathered from the declarations and actions of the party seeking to revoke, and if this clearly appears, even though the party does not declare in terms that he revokes the submission, full operation will be given to the revocation. — Frets v. Frets, 1 Cow. (N. Y.) 335; Caldwell’s Law of Arbitration, p. 80.
It has been held that the institution of a suit to enforce the rights of the party on the matters submitted, if brought before award is made, is a revocation by the party bringing the suit of the agreement to arbitrate. — Paulsen v. Manske, 24 Ill. App. 95; Id., 126 Ill. 72, 18 N. E. 275; 9 Am. St. Rep. 532. In the case of Peters v. Craig, 9 Dana (Ky.) 307, it was said that a revocation is to be implied from the fact that before award is made the party had instituted suit on the cause of action embraced in the submission.
The appellant contends that one or more of the defendant’s pleas setting up the arbitration' in bar of plaintiff’s right to recover do not sufficiently allege an award made or published before suit was instituted. These pleas (Nos. 10 as amended, 12, and 13) contain superfluous matter, it is true; but the court sustained demurrers to the pleas directly averring a pending agreement to arbitrate, and evidently construed these pleas as averring an arbitration and award prior to the commencement of the suit. And even should a different construction, the one contended for by appellant, be placed upon the pleas because of the redundant allegations, the result would be the same, as the case must be reversed because of the error of the court in giving the general charge for the defendant, while a reversal would necessarily also follow because of error in overruling demurrers to these pleas if the construction is given to them insisted upon by appellant. . And as we have discussed the case fully on the merits and the substantial questions involved, the court below will have no difficulty, we think, in applying the rulings we have made to such pleadings as may be before it on another trial of the case.
Reversed and remanded.