120 Iowa 272 | Iowa | 1903
A great many questions are argued which do not seem to be material, or, if material, are not properly presented. The policy was issued June 18, 1897, and the fire occurred November 6, 1897; resulting in a partial destruction of the premises insured. The policy provided,
After the loss occurred an adjuster visited the premises and attempted to adjust the loss, but was unable to do so. He thereupon, and on the 10th day of February, 1898, gave notice that he should rely on the arbitration clause of the policy, named an arbitrator, and fixed the date when the parties should meet to arbitrate as February 21, 1898. Plaintiff responded to this, requesting a postponement until February 28th, or later, and asked the company to prepare a stipulation for arbitration. On the 2d day of March, the parties met and signed an arbitration agreement, which, among other things, provided “that John H. Harte and B. H. Freeland shall appraise and ascertain the
It was afterward discovered that Freeland, who had been named by plaintiff, was a relative; and on the 3d of March plaintiff wrote, requesting that one Messing be substituted in place of Freeland. On the 28th day of July the appraisers met, and duly subscribed to an oath to perform their duties as such. They also appointed one Olarke, of Sioux City, Iowa, an umpire, and on the 29th day of July, after inspecting the property, made the following award: “To the Parties in Interest: We have .carefully examined the premises and remains, of the prop
■ Much is said in argument with reference to rulings of the court iii transferring and in refusing to transfer the case from one docket to the other; but as ho exceptions were taken to these rulings,- and no errors are assigned, thereon, these matters cannot be considered. The case was tried as in equity, and will be treated here as an equity cause. ■ - . .. ■ -
Before the case was tried, defendant offered to confess judgment for the amount of the award, with costs to date of offer,¡ but this .was refused. It is contended that
. Next it is contended fiat the-court erred in setting' aside the appraisal or award, and-this contention -presents-the-controlling point in the case.' Plaintiff says that- the award was invalid-for many reasons, butth-e following aré-the only ones which have any support in the evidence;/(T)because Olarke was not notified of the hearing, and did not participate in the award; (2) for unreasonable' delay in-making the award; (3) f ir mistake and misconduct-of-thfei arbitrators; (4) because the arbitrators did-not give plaintiff notice -of the time and place where they should meet; (5) because- the allowance made by the arbitrators was Unreasonable and inadequate. •
There is no merit in the first contention, for the reason-' that, according to the terms of the arbitration agreement,the umpire was not required to act unless there was’ some
As to the second, there was no such delay as will
The fifth ground is not supported by -the evidence.'While we might not be able to agree with the appraisers in the amount found by. them, there is no such inadequacy-in itself as to justify us in disturbing their findings.-
Mistake of judgment on the part of the arbitrators is not ground for setting aside an award, -unless such mistake-be so great as to indicate partisan lias. Thornton v.
With reference to failure to give notice, plaintiff has shown that no notice was given him, but it is undisputed that he told the appraiser appointed by him that he would
We have left but one question, and that the alleged mistake and misconduct of the abritrators. Claim is made that they refused to hear evidence. It is true that they
It is said that the arbitrator selected by the defendant had great influence over the plaintiff’s appraiser, and that he practically hypnotized him. There is no evidence of any such claim. Indeed, the testimony is distinctly to the contrary.
But it is also said that the arbitrators failed to take into consideration a material part of the loss. This is not true. They may not have estimated the damage high enough, but they went over the entire jjremises, and made their estimates after careful examination.
Further, it is contended that arbitration or airpraisal was not a condition precedent to the bringing of suit. One of the conditions of the policy quoted clearly negatives this thought. See Dee v. Ins. Co., 104 Iowa, 167; Zalesky v. Ins. Co., 108 Iowa, 341.
About all there is in the case is that plaintiff was dissatisfied with the amount of the award, and now seeks to avoid it, and to have the matter submitted to some other tribunal. Arbitrations are favored in law, and an award, when made, will be upheld, unless the evidence clearly
Appellee’s counsel rely strongly on Adams v. Ins. Co , 85. Iowa, 6. Bub that case is clearly distinguishable from the one now before us. There the arbitration an'd award was not pleaded as a- common-law arbitration. Here it was. And while-the arbitration here did not distinctly follow the-provisions, of the policy, the agreement was-valid as a common-law arbitration, and plaintiff could not withdraw therefrom without cause after the award-was made. Harrison v. Hartford Co., 112 Iowa, 77; Coon v. Allen, 156 Mass. 118 (80 N. E. Rep. 83).
■ The decree must be reversed, and the cause remanded' to thp lower court for judgment for the amount of the award, with interest. 'Plaintiff will pay the costs of the appeal. — Reversed.