Miller v. Goodwine
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Opinion of the Court
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Frazer, C. J.
A demurrer was sustained below to the complaint, and that ruling is before us for review. It was averred in the complaint that the parties had been engaged as partners in buying, feeding and selling cattle; that differences arose between them concerning their partnership accounts, which, being unable to settle, they submitted by parol to the arbitrament of two arbitrators named; that *47 after such submission, and after tbe.arbitrators had examined tbe accounts and beard tbe statements of tbe parties and witnesses, but before any award was rendered, they agreed in writing, to abide tbe award when made. This agreement is made part of tbe complaint. Afterwards tbe arbitrators awarded, in writing, of and concerning tbe matters submitted, that tbe defendant was .indebted to tbe plaintiff in tbe sum of $2,598 20. Tbe award is made part of tbe complaint.
It is also alleged that tbe parties were notified of-tbe award, and that tbe defendant failed and refused to comply with it. The appellee has failed to aid us with an argument, but we are told, on behalf of tbe appellant, that tbe ground upon wbicb tbe demurrer was chiefly supported in the court below was, that in consequence of the statute, (2 G. & H., § 1, p. 342,) the submission, to be valid, must have been in writing. Tbe statute in no manner affects submissions wbicb were valid at common law. It is an affirmative statute without negative words, and in no respect are its provisions of such a nature that they cannot have effect consistently with tbe validity of parol submissions. Such submissions wore valid at common law, and as there is nothing in the statute wbicb expressly, or by necessary implication, changes tbe law as it previously existed upon that subject, they are still valid. The statute is merely cumulative. Carson v. Earlywine, 14 Ind. 256 ; Titus v. Scantling, 4 Blackf. 89 .
Tbe judgment is reversed, with costs, and tbe cause remanded, with directions to overrule tbe demurrer.
On Rehearing
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ON PETITION FOR REHEARING.
Frazer, C. J.
We have examined the question made on petition for rehearing, to-wit, that tbe award was void for uncertainty. Hays v. Hays, 2, Ind. 28, is tbe anthority cited to sustain tbe proposition. In that case the question submitted was tbe amount to be .paid for a crop of corn. *48 The arbitrators awarded a certain sum per aci’e, but did not find the number of acres. The amount was not, therefore, determined in that case. There is no such uncertainty here. A definite sum is awarded. If we correctly apprehend the present objection, it is that the award does not recite the submission, or'in any manner show what it was that was submitted. Put it is not necessary that the award should do so. Proof of the submission applies the award to its subject matter. The averment of the submission is sufficiently certain, and it could not be supposed on demurrer that the proof would not sustain it.
J. H. Brown and G. JD. Wagner, for appellant. W. B. Rhodes, Z. Baird, J. A. Stein, S. W. Miller, and J. Buchanan, for appellee.
The petition is overruled.
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