| Ill. | Mar 30, 1885
delivered the opinion of the Court:
An examination of the oral testimony in connection with the submission shows that the differences between the parties which led to a dissolution of the partnership and the submission of. their disputes to arbitration, related mainly to certain partnership claims -which had been either paid by or were due to or from the firm, or had been paid by one or the other of the parties and claimed to be due from the firm. For illustration, it was claimed by Brownell, on the one hand, that a large amount of money and goods which had been drawn out of the firm by John P. McLean, for his services as clerk, should, under the circumstances, be charged up to Steere, individually. This the latter denied. On the other hand, there were certain unpaid accounts on the partnership books, due the firm from various persons,, which were evidently regarded by both parties as doubtful or desperate claims, and which Steere insisted, under the circumstances, ought to be charged up to Brownell’s account. This claim of Steere was, in effect, partly conceded before the arbitrators, but not fully, and hence there was an unsettled difference between the parties in respect to them, which was clearly covered by the submission. The claims here referred to are those against Miller, Swan, and others, specifically set forth in the bill, as well as in the statement which precedes this opinion. An examination of the award shows that the arbitrators made no disposition whatever of these claims, thus leaving, as it would seem, one of the chief objects of the arbitration unattained,—namely, 'the settlement of all differences relating to their partnership matters.
That these claims were presented by Steere to the arbitrators for adjustment, is clearly and satisfactorily shown by the evidence. Indeed, it is not seriously controverted, but the contention rather is, that after they had been presented, and some discussion had occurred between the parties in respect to them, they were voluntarily withdrawn, upon the understanding that the parties themselves would settle them. We have no hesitancy in saying this position is not sustained by the proofs. On the contrary, we are of opinion that the decided weight of evidence shows that nothing of this kind occurred. The whole trouble in the case has evidently grown out of a misapprehension on the part of the arbitrators in respect to the scope and extent of the submission, and the inferences they were authorized to draw from the statements made by Steere and Brownell before them, concerning these claims. This is clearly shown by the testimony of Peter Whitmer, one of the arbitrators. In speaking of these claims he says: “We (meaning the arbitrators) understood the articles by which we were governed did not include the settlement of these accounts, * * * and Brownell agreed, in the presence of Steere, to be personally responsible for a number of these accounts, if they were not collected.” Taking the view the arbitrators did in respect to their right, under the submission, to consider these accounts, they would hardly have made any award concerning them, in any event; but assuming they would but for what was said about them by Steere and Brownell, it is very clear the arbitrators drew an unwarranted inference from the language used, for, according to the decided weight of testimony, there was nothing said by either of them that justified the conclusion that the accounts were withdrawn from the consideration of the arbitrators. The facts, as we understand them from the proofs, are simply these: Steere brought the claims before the arbitrators, and insisted they should be charged up to Brownell. The list was gone over, and discussed between the parties, in the presence of the arbitrators. As to some of them, Brownell said he would pay them if not collected from the parties owing them, as soon as he could collect of the firm accounts a sufficient amount to enable him to do so, out of his share of the proceeds, after having first paid the debts due from the firm. As to others, he said he would settle them in the same way if the firm was not liable for them. By this we understand him to have meant, that, assuming the claims proved uncollectible, he would stand the whole loss if it was not properly chargeable to the firm. This conditional promise was, of course, leaving the very question in dispute (namely, Brownell’s exclusive liability,) still open for further controversy—the very thing sought to be avoided by the arbitration. As to another of the claims, Brownell proposed to settle it provided he could do it by setting it off against a claim the one owing it had against the firm. Now, there is clearly nothing in all this that justifies the conclusion that the accounts in question were withdrawn from the consideration of the arbitrators. To make the case much stronger upon appellee’s theory of it, let us suppose that when Steere presented these accounts, and assigned the reasons why they should be charged up to Brownell, individually, the latter had said, in response, “I concede the justness of what you say in respect to these claims, and promise you I will become personally responsible for them, and settle them just as soon as collections will enable me to do so,” and Steere had rejoined, “That is satisfactory,”—would this have authorized the arbitrators to take no account of the claims in stating the account between the parties ? Surely not. The only effect of the statement would have been to relieve Steere from the burden of proving such facts and circumstances as would have shown that the accounts in question should, in justice, be charged up to Brownell, individually. Upon such a statement of the parties it would clearly have been the duty of the arbitrators, in stating the account, to have charged these claims up to Brownell, without further proof. If this be true, of which there are no just grounds to doubt, it will not be pretended the action of the arbitrators can be sustained. These claims having been specifically submitted, they should have been passed upon by the arbitrators. If the evidence was sufficient to charge Brownell, they should have been allowed, otherwise they should have been rejected. This was not done, as appears not only from the evidence, but from the face of the award itself. This was a serious error, directly affecting the validity of the award.
As to the claim that the arbitrators willfully disregarded the law in the discharge of their duties, we see nothing in the record to warrant it. Nor do we see anything substantial in the objection that the award was prepared by one of the attorneys, as there is nothing tending to show it did not fully express the findings and conclusions of the arbitrators. An award should not be set aside on merely technical grounds, that in nowise affect the merits of the controversy, especially where it is apparent, as it is here, the utmost good faith has been observed.
The objection that the award was not signed by all the arbitrators at the same time and place, we regard in the same light. It is sufficient that it was signed by them after then-work was completed and their deliberations had closed, and that the writing signed fully expresses the conclusions reached by them. Such was the case here. Blodgett v. Prince, 109 Mass. 46; Maynard v. Frederick, 7 Cush. 252.
The judgment, however, for the reasons stated, will have to be reversed, and the cause remanded to the Appellate Court, with directions to that court to reverse the decree of the circuit court and remand the cause for further proceedings not inconsistent with this opinion.
Judgment reversed.