22 Ill. App. 107 | Ill. App. Ct. | 1886
In the view we take of this case, there are just two questions involved: Did Junk have authority to bind the appellant by arbitration, and was the award as signed binding on the appellant ?
First. Had Junk the authority to bind the appellant by arbitration ? He was its agent to take applications for insurance. They had written to him in regard to the settlement of this loss, and wrote to him, it was willing to leave it to fair-minded men,” and made no suggestion so far as appears as to who the arbitrators should he or how they should be selected otherwise than as stated. The implication would be that Junk, their agent in that locality, with whom they were corresponding, would make the selection, and no restrictions were placed on him. The award was forwarded to the appellant and it never denied the authority of Junk to submit. Two weeks afterward it was written to again, and then offered to pay $23, but even then did not repudiate the authority its agent had assumed. The letter of instructions to the agent, Junk, as to the claim of appellee, is in its hands or in the hands of its agent, and it does not produce the letter or account for it and does not deny the authority was given. We hold that there was sufficient evidence of authority to Junk to bind the appellant by arbitration, and that there was no error in admitting in evidence the agreement to submit to arbitration.
Second. Was the award as signed binding on the appellant ? It is insisted by counsel for appellant that in order to render the award valid and binding it must be signed by all the arbitrators, and in support of this position we are referred to Morse on Arbitration, 162: “ Unless the statute provide to the contrary, the rule is general and imperative that all the arbitrators must unite in the award in order to render it valid.” We find that the same author on the same page uses this language: “ Or unless a contrary intention of the parties can be clearly and unmistakably gathered from the submission and the attendant facts.” The same author says: “The authorization of a majority to make a valid decision need not always be made in distinct terms. If it can be clearly gathered from a necessary implication it may suffice.” If, as we have held, Junk had full authority to submit the question to arbitration, then he had authority to agree that an additional arbitrator should be chosen, and that the award of a number ■less than the whole should be taken. The evidence shows that the four could not agree. An award signed by less than four named in the written submission would not be binding. The evidence further shows that when it was found that the four selected could not agree, the parties agreed to let Koonse, a fifth man, serve on the arbitration. The intention of the parties is perfectly apparent, in calling in a fifth arbitrator ; it was that an award rendered by the majority should be valid. They already knew that the four called could not agree and that no valid award could be made by them without the concurrence of all. The calling in of the fifth arbitrator was to obviate the difficulty so that a valid award could be made by the majority of the arbitrators. The conduct of the parties is clearly within the rule stated by Morse, supra. It was also shown by the evidence that Junk consented to an award by a majority. We hold as to the second point that the award was binding on appellant.
In the view we have taken of this case, there was no error in excluding the evidence offered by appellant. The claim of appellee being founded as we hold on an award, the evidence sought to be introduced was pertinent to no issue on that question. The facts having been found by the jury against appellant, we concur in that finding.
Findmg no error, judgment affirmed.