82 Md. 351 | Md. | 1896
delivered the opinion of the Court.
On the first day of January, 1881, Isaac Witz, Levi Witz, Wm. T. Biedler and Samuel R. Tregallas entered into articles of copartnership, by which it was agreed what each partner was to contribute to the capital, what interest thereon was to be paid, what share of merchandise on hand each was to receive in the event of dissolution of the firm, and that the copartnership should continue for the term of three years. It was further agreed that after paying all expenses and losses the appellee was to receive one-tenth of the profits, and that the remainder should be divided equally between the other three, but if the appellee furnished additional capital from two to fifteen thousand dollars, within
The partnership continued until December 31st, 1889, when it was finally dissolved, and the assets were turned over to the appellants and W. T. Biedler, as liquidating partners, who proceeded to realize on them. After a large part of them had been collected and distributed, differences arose between the members of the firm, and on February 18th, 1893, an agreement was entered into "to submit said differences to arbitration.” It was therein stated that Christian Devries was satisfactory as an arbitrator to three of the partners, and if Mr. Tregallas desired two, he was authorized to name one, and in case he did, and the two could not agree upon a conclusion, they could select an associate, and “ the majority decision shall be the unanimous decision.” The arbitrators were required to write their names on the agreement as evidence of their acceptance. It was further provided that either party could present his views in writing or orally and offer such evidence as he deemed advisable.
Mr. Tregallas exercised the right to name an arbitrator and selected J. Frank Supplee. Messrs. Devries and Sup
“ Each of the partners who has received more than his share, as above determined, of the assets thus far distributed, shall return the same, and in the future all assets received shall be distributed in the proportion above set forth.
“ The Bridener defalcation made before the dissolution of the firm, and any and all other items charged off or to be charged off shall be charged to the respective partners on their accounts in the same proportion as above declared.
“All expenses of liquidation shall also be divided or charged to each partner in the proportion above set forth.
“ The three liquidating partners, Levi Witz, Isaac Witz and William T. Biedler, shall repay to the firm the sum of $4,636.61, the amount of the defalcation of the bookkeeper, Bridener, made after the dissolution of the firm.”
The award was acceptable to Messrs. Biedler and Tregallas, but not to the Messrs. Witz, who declined to abide by it. Mr. Tregallas filed the bill in this case against the other three members of the firm, praying (1), that the defendants should be. required to account with him for all the assets which they had received, as liquidating partners of the late copartnership, including the sum of $4,636.61, specially mentioned in the award ; (2), that there might be an accounting and a distribution of the assets in the manner prescribed by said award, and (3), for general relief. William T. Biedler admitted the allegations of the bill, but the Messrs. Witz filed an answer in which they set up a number of objections to the enforcement of the award.
Before considering the main reasons relied on by the appellants for setting aside the award, it may be well for us to pass upon what might be termed the preliminary and technical questions that have been urged in this Court. It is said that there is no jurisdiction in a Court of Equity in this State to enforce an award. The learned counsel for the appellants did not rely for this contention upon any decision in Maryland sustaining that position, but rather upon the absence of all precedents in this State to justify a Court of Equity intervening to enforce the specific performance of such an award. If that be conceded, it is not conclusive against the right to do so when a proper case is presented. If we assume that this award is valid, we can see no reason why a Court of Equity cannot require an accounting and a distribution of the assets of the firm between the partners on the terms established by it. The defendants were bound to account to the plaintiff, and the arbitrators having determined the proportion of assets that each partner was to receive, such accounting should be in accordance with the award. It is conceded in the answer of the appellants that “ an accounting under the the supervision of this Court is necessary, in order to ascertain the respective rights of copartners.” Whether the distribution be made in the proportions fixed by the award, or otherwise, it is evident that a Court of Equity must take charge of the settlement to do full and substantial justice between all partners, as they cannot agree among themselves. It might well be questioned whether this is, strictly speaking, a bill for the enforcement of a specific performance of the award— whether it is not simply a bill to settle the affairs of the copartnership, using the award for the purpose of determining the proportions the partners are to receive, and such other matters as it disposes of. But there is no longer any
It is also contended that the award is void, because Mr. Conklin failed to sign his name on the agreement. It is true that there is a provision that “ The said arbitrators shall write their name or names on this article of agreement, as evidence of accepting the same,” but there is no doubt that Mr. Conklin was duly selected by the other two, and that in point of fact he did accept, with the knowledge and consent of the partners. He ought to have signed his name, but his omission to do so did not and could not possibly prejudice or injure the appellants. His signature was not the only evidence of his acceptance of the appointment, and to set aside an award for such an omission would be far more technical than is required or justified either by authority or reason. The testimony of Mr. Conklin shows that his failure to sign his name was entirely an oversight, and not because there was any question of his acceptance.
It is further alleged that the three arbitrators did not act together, and that it was in effect simply an award of the two who signed it, without their making a proper effort to have all three pass upon and agree to the matters submitted to them. The evidence shows that Messrs. Devries and Supplee had a number of meetings, during a period of time covering about two months, and heard considerable evidence and argument. Being unable to agree, they finally selected Mr. Conklin. After his appointment all three met at different times and the partners were requested to come before them. All except Mr. Isaac Witz appeared and were interrogated by, or at least in the presence of the three arbitrators. Mr. Levi Witz informed them it would not be necessary to have his brother present, as he could answer all questions for him. They were represented by the same counsel in the written
After that, as Mr. Conklin was going away, he and Mr. Supplee prepared and signed the award that is filed in the case, buf at the request of the former the latter took it to Mr. Devries, who declined to sign it. The two arbitrators who constituted the majority were under no legal obligation to present the award to Mr. Devries, he having already withdrawn because he could not agree with the majority, and that act of courtesy of submitting it to him certainly cannot invalidate it. It was agreed in the submission “ that the majority decision shall be the unanimous decision,” and hence, two had the power to make the award if the three could not agree, and no one of them could defeat it by his withdrawal. All the testimony that the majority deemed relevant and proper was fairly and fully considered by the three and the award cannot be set aside because it was signed by the two, in the absence of the third, who had declined to act.
So far as the objection that the counsel for Messrs. Tregallas and Biedler was on one occasion called before Messrs. Devries and. Supplee, a sufficient answer might be that it occurred before Mr. Conklin had been appointed. But it would be carrying technicalities to an extreme to say that this would have invalidated the award if he had appeared before the three in the absence of the other counsel without at least showing that some injury was or might have been done. Mr. Arnold was present as an accountant to sustain the claim of the Messrs. Witz, and Mr. Supplee suggested that it might be well to have Mr. Rose, counsel for
This brings us to the consideration of the questions whether the arbitrators exceeded their powers by passing on matters not submitted to them, or failed to consider all matters that were so submitted. The articles of submission begin, “ desiring to reach a speedy, equitable and just settlement of our partnership differences, We * * * * members of the late firm of Witz, Biedler and Company, agree to submit said differences to arbitration; further agree to submit all books, papers, documents pertaining to the business of said Witz, Biedler and Company, to the use of the said arbitration.” What these differences were are not disclosed on the face of the agreement, and we must therefore resort to extrinsic evidence to ascertain them. The large preponderance of testimony shows that the differences existing were those passed on by the arbitrators in the award, but if there could be any question about that it would seem to be conclusively settled by the written arguments submitted by the ’ counsel for the respective parties. That of the counsel for the appellants was largely taken up in his effort to sustain the contention of his clients as to the proportions in which the assets should be distributed; whilst Messrs. Biedler and Tregallas contended for another principle which was adopted by the arbitrators. He then discussed the Bridener defalcation before the dissolution, and under a separate head the defalcation during the liquidation, and concluded by giving his views in brief as to the expenses of the liquidation. Thus we see that the questions passed on by the arbitrators were those argued before them. There is nothing on the face of the award to suggest that any matters were passed upon which had not been submitted, unless, possibly, that as to the Bridener defalcation after the dissolution of the
We have not been able to discover from the evidence wherein the arbitrators failed to pass upon any question which had been submitted to them. It is true that there were some matters of detail as to the distribution, etc., argued before them, which are not mentioned in the award, but they are necessarily embraced in what was determined. In reaching a conclusion as to what proportions of the assets the former partners were respectively entitled to, the arbitrators presumably took into consideration all the evidence submitted to them and the theories .presented by respective parties, including the questions as to how far the course of dealing between the partners changed the terms of the articles of partnership in reference to interest on the capital invested, the accounts of the partners with the firm, and other relevant matters. The burden of proof is on the appellants to show that the award is not coextensive with the submission (Morse on Arbitration, 363), and they have utterly failed to satisfy us of this or that the arbitrators exceeded their powers.
Then again it is contended that the award is not certain and final and that an account should have been taken and the sum due by each partner ascertained. The differences between the partners that were to be arbitrated were not as to the amounts received by them or what the assets of the
It was also contended that the arbitrators were mistaken both as to the law and the facts. There is nothing on the face of the award to indicate that any mistake of law was made, as there should be to avoid an award on that ground. Goldsmith v. Tilly, 1 H. & J. 361; Hewit v. State, 6 H. & J. 95; State v. Williams, 9 Gill, 172. But it was conceded before the arbitrators that the business of the firm had not been conducted according to the articles of copartnership, and the counsel for all the parties contended that the departure from the terms of those articles,
It is well settled in this State, as well as elsewhere, that the decisions of arbitrators on questions of fact are generally final and conclusive when there is no imputation on their conduct. Cromwell v. Owens, 6 H. & J. 10; State v. Stewart, 12 G. & J. 456; Ebert v. Ebert, 5 Md. 353; Morse on Arbitration, 316. Courts of Equity may sometimes grant relief for palpable errors in awards, such as an apparent mistake in calculation or something of that kind, but where the facts that have been submitted are such as may be determined differently by fair-minded and honest people, the conclusions of those selected for the purpose are final, and not subject to review by some other tribunal. The fact that the accountants produced by the appellants may think the arbitrators erred, does not authorize us to interfere with the award. The parties selected the arbitrators, not the accountants, to pass on these questions, about which the partners themselves, as well as accountants, differed. It was said in 5th Md. 359, “a more liberal and reasonable interpretation is now adopted by the Courts than formerly
Decree affirmed and cause remandéd, with costs to the appellee.