Richards v. Smith

91 P. 683 | Utah | 1907

Lead Opinion

McOARTT., C, J.,

after making the foreg'oing statement of the ease, delivered the opinion of the court.

Appellant contends that “the award is void because beyond the terms of submission, in this, the arbitrators undertook to determine the right of action as matter of law, which was not submitted but conceded or reserved by the parties.” That is, it is urged by appellant that the submission on its face shows that the parties conceded that the contract with respect to the sale of land existed between them, and that there was a breach of the contract, and therefore the only question for determination submitted to the arbitrators was the amount of damages. From these premises it is argued that the appellant, on the face of the submission, was entitled to at least nominal damages, and that, when the arbitrators undertook to determine whether or not a cause of action existed in favor of appellant, they exceeded their authority. As stated by counsel for appellant in their brief, the submission takes the place of a complaint and answer and contains the admissions as well as the allegations of the parties. The “admissions” and “allegations” presenting the questions and issues submitted to the arbitrators were that the “parties have agreed to submit a certain controversy existing between them* wherein said Joseph S. Richards, plaintiff, claims that said defendant is indebted to him in a sum of money, to^ wit, $55,-500, as damages, for not carrying out a certain agreement made between him and the late Bishop Hunter, in regard to the purchase and sale of a certain piece of land, and which damages said defendant denies.” The foregoing recital in the submission shows that a certain controversy was submitted. The general rule, of course, is that submissions to- arbitration are to be liberally construed; and that:

“Courts do not travel out of their way for the purpose of overturning awards, but, on the other hand, will refrain from exact and technical interpretation, and will indulge every reasonable presumption, whenever there is any room for such indulgence, in favor of the finality and validity of the award.” (3 Cyc. 673.)

So construing the language contained in the written submission, we are of the opinion that it includes the questions of the existence of a contract and breach thereof, as well as the question of damages and the amount, if any, sustained; and that therefore it was within the authority of the arbitrators to determine the question whether or not a cause of action existed. It is quite true that, if the language is to he construed technically, and is to be interpreted under the rules of pleadings, there is some force to the argument that the denial portion of the written submission is simply a denial' that the plaintiff was entitled to $55,500 damages. Giving it such a construction, the denial would, in effect, amount to an admission that the defendant was indebted to the plaintiff in a sum less than $55,500. But upon what theory is the submission to be construed most strongly against the defendant ? It was plaintiff’s document or pleading as much as it was the defendant’s. Whatever was uncertain or incomplete about it was plaintiff’s uncertainty as much as the defendant’s. However, we do not see anything in the writing to warrant the conclusion that the parties intended to stipulate that the contract existed, or that there was a breach thereof on the part of the defendant or the late Bishop Hunter, or that either of them was indebted to the plaintiff in any sum on account thereof. Such was not the evident intention of the parties, as expressed by the obvious and natural meaning of the language used by them. The writing recites that “plaintiff claims” the defendant is indebted to him in the sum named for not carrying out a certain contract. No words are contained in the writing from which it could be fairly implied that the defendant admitted or conceded any part of the claim. Respondent by his general denied clearly negatives any present liability, and this denial is also a denial of any liability on the part of Bishop. Hunter. Such is what the parties evidently intended it for and meant by it. In ascertaining the meaning and intention of the parties as expressed by the writing, we must not separate portions of it and construe parts most strongly against one or the other of the parties, but must consider and construe the writing as a whole. When so considered, we have no doubt that the finding of the arbitrators is within tbe issues submitted. (3 Cyc. 604.)

Appellant next contention is that the arbitration was not completed until the award was filed with the clerk, and therefore was not concluded within the time specified in the submission. The arbitrators were not required, under the statutes, to file their award with the clerk. Section 3223 of the Revised Statutes of the state of Utah, 1898, provides that, when the submission is made an order of the court, “the arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment.” And section 3227, Bev. St. 1898, provides that “the award must be in writing, signed by the arbitrators or a majority of them, and delivered to the parties.” An award is defined as “the judgment or decision of arbitrators or referees in a matter submitted to them.” (1 Bouv. Law Diet. 205; 1 Words & Phrases, 656.) In 2 A. & E. Ency. Law (2d Ed.), 719, it is said: “The judgment of the arbitrator and also1 the paper on which it is written are called an ‘award.’ ” Therefore, it is manifest, from the very nature of an award, that it must be made and concluded before it can be filed. Section 3227, supra, provides that “when the submission is made an order of the 00111% the award must be filed with the clerk and a note thereof made on his register.” No time is fixed by the statute when this must-be done. It is evident, however, as we have suggested, that it- cannot be done .before the award is made and concluded by the arbitrators,, because before it is so made and concluded there is no award to file. The purpose of making a submission to arbitration an order of the court is to give the award, when filed with the clerk and entered in the judgment book, as provided in section 3227, Rev. St. 18.98, the force and effect of a judgment. When the arbitrators signed the award and delivered it to the parties, they did all they were authorized or -empowered to do under the statute. It then devolved upon the parties themselves, if they, or either of thm, desired the award to- have the force and effect of a judgment, to file it with the clerk and proceed in the manner pointed out in section 3227. As neither the statute nor the terms of the submission required the parties to file the award with the clerk within a specified time, the mere delay in filing, which either of the parties could have obviated, did not deprive the court of jurisdiction to enter the judgment appealed from.

And furthermore, section 3228, Rev. St. 1898, provides upon what grounds a court may vacate an award, and delay in filing an award is not one of the grounds therein specified. (Boone v. Reynolds, 1 Sug. & R. [Pa.] 231; Patrick v. Batten, 123 Mich. 203, 81 N. W. 1081.)

The judgment is affirmed, with costs.

STRAITP, and FRICK, JJ., concur.

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Rehearing

ON Rehearing.

FRICK, J.

A rehearing is requested in this case upon the ground that we failed to specially consider and pass upon the assignment that the district court was without jurisdiction, for the’reason that the arbitrators held a session and heard the statement of appellant’s case before the agreement of submission was filed in court and before the clerk made the entries required in a statutory arbitration by section 3223, Eev. St. 1898. In view that we sustained the judgment, and, further, directly held that the court had jurisdiction, we deemed the point now made by counsel as necessarily included within our decision. In deference to counsel’s request, however, we have concluded to briefly state our reasons for holding that the court had jurisdiction notwithstanding the fact that the hearing may have been entered upon bef ore the submission agreement was actually filed in court. This we have concluded to do without the formality of a rehearing.

It appears from the opinion that the agreement of submission was duly entered into and acknowledged on August 6, 1902, and that on the 14th of said month the arbitrators duly qualified by taking the statutory oath. In the agreement of submission it is stipulated that the “arbitration shall take place” (begin) on September 30, 1902, and “shall be concluded on or before the 1st day of December, 1902.” In the agreement the arbitrators were given all the powers provided for by the statutes of this state. One of the powers conferred is the right to adjourn from time to time pending the hearing. The award was reduced to writing and signed on October 14, 1902, within the time fixed by the agreement of submission. On the day fixed by the agreement of submission for the arbitration to begin, the arbitrators met, and on that day, as the record shows, the appellant “introduced his case and made a statement thereof to said arbitrators.” Following this, to wit, on October 2, 1902, the agreement of submission was filed, and the clerk duly made the entries as required by law. After hearing appellant’s statement of his case on September 30th, the day fixed for the arbitration to'begin, the arbitrators adjourned the hearing to October 13, 1902, at which time, the record shows, they all met, “and the witnesses being sworn, testimony was given on both sides.” On the following day tbe award was duly made in writing, signed by all tbe arbitrators, as required by tbe statute. It will thus be seen that every requirement of chapter 40, under which the arbitration was had, was substantially complied with.

Was it necessary to file the agreement for submission before the hearing was actually entered upon ? We think not. Section 3223, so far as material here, provides:

“It may be stipulated in the submission that it be entered as an order of the district court. . . . When so entered the stipulation cannot be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission is not made an order of the court, it may be revoked at any time before the award is made.”

When the submission is made an order of the court, then, as provided by section 3221, the award must be filed with the clerk. In neither of these sections is the time of filing mentioned or made of the essence. By section 3223 the object of filing the submission with the clerk is clearly intended for the purpose of conferring power upon the court to compel an award by the arbitrators, and to enforce it when made, and to compel the attendance of witnesses. The only effect the filing has upon the parties is that, after the submission is filed, neither party may revoke it. The object, therefore, is not for the purpose of conferring power upon the arbitrators to hear the matters submitted to them, but to bring them and the parties within the jurisdiction of the court. Therefore, from the time the submission is filed, if filed within the time fixed by the agreement for concluding the arbitration, or, if no time is fixed, before an award is made, we think the court acquires jurisdiction. But up to the time it is so filed a party may revoke the submission, and the court can neither compel the arbitrators to make an award, nor enforce it if made. If a time be specified in the submission, as in the case at bar, when the arbitration must be concluded, then it must be concluded within this time limit, or the arbitrators will lose jurisdiction to act further without the express consent of the parties. But the mere fact that the arbitrators comply with tbe agreement of submission in entering upon tbe bearing of tbe matters submitted to them before tbe submission is filed in no' way affects tbeir jurisdiction, nor does it affect tbe jurisdiction of tbe court, provided tbe submission be actually filed and tbe proper entries made at any time witbin wbicb tbe agreement itself is in full force and effect; tbat is, before tbe time bas expired witbin wbicb tbe arbitrators may, by tbe terms of tbe submission, make an award.

As we construe section 3223, tbe effect of a failure to filo tbe submission in court is tbat it permits the parties to revoke it, and tbe court acquires no jurisdiction until it is filed. If, however, tbe submission is filed and tbe entries required by tbe statute are made at any time before tbe award is made by tbe arbitrators, or, in ease a time is specified witbin wbicb an award must be made, before such time expires, then tbe court acquires power to act. From the time tbe submission is filed, as aforesaid, tbe district court ac-‘ quires jurisdiction of tbe arbitration, and tbe proceeding is then pending in court. After tbe award is rendered, either party may, at any time, as pointed out in tbe original opinion, file it and have judgment entered; or may attack tbe award upon tbe grounds named in the statute, and may appeal from tbe action of tbe district court to this court. By this means every right contemplated by tbe statute is preserved to either party and tbe very purpose of tbe submission agreement is effectuated; while, if appellant’s contention were granted, any irregularity would defeat the arbitration, and thus destroy tbe very purpose of tbe statute.

We have carefully read all’ tbe cases cited by counsel upon this question, and, as we read them, nothing is contained in any of them tbat is contrary to tbe conclusions reached by us.

It follows, therefore’, that tbe application should be, and accordingly is, denied.

McCARTY, C. J., and STRAUB, J., concur.