Willingham v. Harrell, 36 Ala. 583

Willingham v. Harrell

36 Ala. 583 | Ala. | 1860

R. W. WALKER, J.

1. The application to set aside the award is based upon nine distinct grounds, which are stated' in numerical order in the bill. 1 Of the existence of three of these objections to the award the complainant was fully advised at the time he proceeded to execute it. Of course* these objections are worthless as a foundation for such an application.

2. The six grounds of objection, of the existence of which the complainant alleges that he was ignorant when he performed the award, are those which are numbered in the bill as the 1st, 2d, 5th, 6th, 7th and 8th. The 1st is a general charge, that “ the arbitrators were guilty of fraud, partiality and corruption, in making the award.” To this objection it is a sufficient answer to say, that in a bill to set aside an award, the particular ground bn which it is impeached ought to be charged with all its circumstances. Russell Arb. 676; Tittenhouse v. Reat, 3 Atk. 529. A general charge of fraud, partiality and conniption, without specification of particulars, is wholly insufficient.

3. The 2d objection is, that the arbitrators were not sworn. Without intending to intimate that there may not bo other satisfactory answers to this objection, we mention one which we consider conclusive — that is, it-was not necessary that the arbitrators should be sworn. It is obvious, we think, that this cannot be considered as an arbitration under the Code. ■ Though the matters submitted were involved in suits then pending, there was no agreement that the submission should be, nor was it, made an order of court; and contrary to the rule which governs *587in statutory arbitrations, it was stipulated that neither party should be a witness without the consent of the other. See Code, §§'2709, 2718. The proceedings appear to have been conducted throughout without reference to the regulations prescribed' for arbitrations under the Code; the arbitrators were not sworn; they refused to allow the parties to the submission to be present; they did not deliver copies of their award to the parties; the award was not returned to the court in which the suits were pending; nor was any attempt made to have it entered up as the judgment of that court. These facts, most of which were known to the complainant before he performed the award, show that the parties did not intend or treat this as a statutory arbitration ; and the complainant cannot now insist that it was. As the arbitration was independent of statute, there is no rule of law, which required that the arbitrators should be sworn. — Howard v. Sexton, 4 Comstock, 157; Sloan v. Smith, 3 Cal. 406; Forqueron v. Van Meter, 9 Ind. 207.

4. Another ground of objection is, that the award was not returned to court. Wo do not perceive how it is possible that the complainant can have been injured by this circumstance. How can he complain that the award was not returned to court, when, without waiting for that to done, he at once proceeded to execute it ? Besides, it was no part,of the agreement that the award should be returned to, or be made the decree of the court; and as the arbitration was not under the Code, there whs no necessity that it should be done.

5. The other three objections are, in substance — that arbitrators placed an enormous hire upon the slaves, aggregate amount charged ^against the complainant this ground being $9,000 more than he ought to pay; the allowance for rent of the land was grossly unreasonable, exceeding by $3,000 what was justly due; and the arbitrators failed to give the,complainants credit $2,000 paid by them on account of a land purchase made by the testator in his life-time. Passing by the question, whether a court of equity would, under any circumstances, set aside an award for such objections as *588these, it is obvious that they can be of no avail in this suit, for'the reason that, if the complainant was not fully advised of the existence of all of them, at the time he proceeded to perform the award, his ignorance was the result of his own gross negligence. The award was made on the 21st November, 1855. A simple inspection of if would have informed the complainant of the amounts allowed for the. hire of negroes and rent of land, and that no credit had been given him for the $2,000 paid for land purchased by tbe testator. But, without taking the trouble to examine the award, which he does not pretend he ever sought to do, the complainant chose to rely upon mere verbal information as to tbe aggregate amount allowed by the arbitrators, and, as early as the 24th November, 1855, began to pay it off. On that day, he paid the defendant $4,000. Two days afterwards, hé conveyed to the defendant a valuable tract of land, and a house and lot, and transferred to him sundry notes on third persons, which conveyances and transfer were made by tbe complainant, and accepted by the defendant, as a payment to the extent of $15,699 67 on the award.' lie made another small payment in December. On tbe 18.th April, 1856, he executed to the defendant four notes, amounting in the aggregate to $11,021 00; and on the 26th April, 1856, he made a further payment of about $2,000 ; the entire amount thus paid and agreed to be paid by tbe complainant being $88,088 00, which is the exact amount of the award. Having thus actually paid about two-thirds of tbe amount of tbe award, and settled the balance, by giving his notes with security therefor, the complainant, after the lapse of more than two years from the date of his last payment and of the execution of his notes, files this bill to set aside the award. After thus blindly closing the transaction in pursuance of the award, he lias no right to appeal to a court of, chancery to relieve him from the consequences of his own neglect, by- setting aside the award, upon grounds of the existence of which, if he had exercised ordinary circumspection, be would have been fully informed before concluding the settlement.' It must be a very strong'case to justify a court of chancery in *589opening an award, after the party making the application has actually paid more than one-half of the amount found to be due by the arbitrators, and settled the balance by giving his notes therefor. — Johnson v. Ketchum, 3 Green’s Ch. 364; also, Sharpe v. King, 3 Ired. Eq. 402; Atkinson v. Manks, 1 Cow. 691; Picton v. Graham, 2 Dess. 592; Tyler v. Stephens, 7 Geo. 278; Forqueron v. Van Meter, 9 Ind. 270; Steele v. Kinkle, 3 Ala. 352 ; McRae v. Buck, 2 St. & P. 155.

The amendments proposed would not have relieved the complainants from the imputation of laches' so clearly justified by the allegations of the original bill; and hence, they have sustained no injury in consequence of the chancellor’s refusal to allow the bill to be amended.

.■Decree affirmed.