Price v. White

27 Mo. 275 | Mo. | 1858

Scott, Judge,

delivered the opinion of the court.

This was a submission to arbitration entered into in pursuance to tbe first section of the act in relation to that subject. The statute enumerates the causes for which an award under that section shall be vacated, and directs that unless it is thus vacated it shall be confirmed. None of the steps required by law were taken by the defendant to have the award vacated. The objections to the award were all formal and such as might have been corrected under the 30th section of the act if the party had seen proper to have had it done ; but having failed to do so, he will not be permitted now. to raise them in this court.

The defendant complains that the agreement for a submission is too vague and indefinite in its description of the subject of dispute, its language being “ a matter in difference between the parties,” without any thing more showing the suject of the difference. We do not undertake to say what would have been the force of this objection in an action on the agreement to submit in the event there had been a refusal to arbitrate under it. A reference of all matters of difference between the parties is good. The plaintiff and defendant having agreed to submit a matter in difference between them, having appeared before the arbitrators and litigated a matter without any denial that it was the subject of dispute between them, the defendant should not be heard objecting to the bond in this form of proceeding. If the defendant conceived that the award was too vague for his protection from future litigation, the statute pointed out to him a way to have it corrected.

The agreement to submit sufficiently shows that the circuit court of Osage county was the court in which the award was to be entered as a judgment. As the parties represented themselves to be “ of Osage county” in the article of submission, in stipulating that the award should be entered as a judgment at the next term of the circuit court in said county they clearly indicated the court they had in contemplation.

The objection to the notice of the award is not saved. It does not appear when the notice was served, though it is stated that at least fifteen days’ notice in writing was given to the defendant. The award was made on the 16th of December, 1856. The acts changing the times of holding courts in Osage county was passed on the 15th day of January, 1857, and took effect immediately after its passage. (Sess. Acts, 1856-7, p. 467.) Now if the notice of the award was served between the 16th of December, 1856, and the 15th day of January following, it was then good; and if the general assembly afterwards changed the time of holding court, the party served with notice should at his peril have taken notice of the change.

It is objected that the court erred in disregarding that portion of the award which directed that the defendant “ should winter with roughness the cattle of the plaintiff.” This act.was for the benefit of the plaintiff, and the omission of the court to enforce it was an advantage to the defendant. The plaintiff consented to the action of the court. Nothing is clearer than that an award may be good in part and bad in part, and the bad part may be rejected when it is so unconnected with the residue that it may be seen that its rejection does not affect the justice nor the correctness of that portion of the award which is retained. It sufficiently appears that the part of the award which was disregarded had no such connection with the portion retained that its rejection could possibly affect the defendant in an injurious manner.

The statute does not prescribe the length of time the parties shall be notified before the hearing. As it appears from the award that the defendant appeared before the arbitrators, he could not afterwards object to the want of notice. As he appeared, if the notice was too short, or if he had had none previously, he might have applied for a postponement, which the arbitrators were empowered to grant.

The fact that the award directed money to be paid and different articles of produce to be delivered to the plaintiff, did not show that there was more than one matter in difference between the parties considered by the arbitrators. There were two awards filed in the clerk’s office by-the plaintiff. We do not see that there was any substantial difference between them. The one imports no more than the other. If the corn and bacon could not be had, the value of it at the time of the award might have been recovered by an action on the award. The court can compel the performance of the award by attachment. That would, we suppose, be the proper process to compel the performance of so much of the award as relates to the delivery of the produce. If the defendant is too poor to comply and has not the means, that would be a subject of consideration, regard being had to the law which prohibits imprisonment for debt. It was a matter of concern to the plaintiff only, that the court gave the defendant the option of paying in corn and bacon, or its value.

The defendant is not injured by the judgment of the court. He can relieve himseelf by performing the award as it was originally made. That the court has given him the option of performing the award, or doing something else, is to his advantage, and not to his prejudice. He can not complain. (Gentry v. Barrett, 5 J. D. Marshall, 317.)

Affirmed.

The other judges concur.