145 Iowa 65 | Iowa | 1909
-Issues had been joined March 8, 1906, as to whether defendants, or those under whom they took, had obstructed plaintiff’s ditch, and, if'so, the amount of damages caused thereby, and whether plaintiff by the excavation of the ditch had directed water from its natural course and thrown it on defendants’ land to their damage, and, if
But appellant -urges that whatever was done by him subsequent to the filing of the award was in ignorance of the omission of the arbitrators to file the same in time. The attorney for plaintiff has testified that, he was not aware of this, but there is no showing that plaintiff in accepting the benefits of the arbitration acted without knowledge of the condition of the record. Even if he did not know, upon discovery of the fact he was put to his election either to rescind what had been done in pursuance of the award or
The award not being filed in time, derives its force from the acceptance of the parties. As in the cited case, it proposed to the one party to transfer certain property and perform certain other things, and to the other party, to pay certain sums of money, and to do certain other things. These terms were mutual and dependent; each forming a consideration for the other. The parties manifest their adoption of these by part performance, and by asking the court for judgment on the award as made. After having availed himself of the benefits of such award, the plaintiff, without tendering a rescission and offering to put defendants in statu quo, ought not to be permitted to
■ As the original action was still pending, and the stipulation • of submission may be regarded as enlarging the scope of the inquiry, the court had jurisdiction, and its judgment must be, and is, affirmed.