Vallé v. North Missouri Railroad

1. Arbitrations — Award—Practice—Supreme Court. — It is too late to urge in the Supreme Court, as an objection to an award, that the arbitrators were not sworn ; the objection should have been made in the court below. 2. Arbitrations — Award.—It is not necessary, under the statute, that an award should be attested by a subscribing witness, unless the submiss on provides that the award shall be made the judgment of the Circuit Court, and be enforced according to the provisions of the statute. (R. C. 1855, p. 195, § 6.) S. Practice — Pleadings—Evidence.—No evidence is required of facts admitted by the pleadings. 4. Arbitrations — Award—Mistake of Arbitrators. — An award will not be set aside upon motion, or vacated for any mistake of law or fact that does not appear upon the face of the award itself. But where a courtof equity is resorted to to set aside an award on the ground of fraud, prej udice, or mistake, extrinsic evidence may be resorted to, and the arbitrators may themselves be witnesses. A court of equity will not relieve those who have not used due diligence to protect themselves.

Appeal from St. Louis Cowt of Common Pleas. I.The paper purporting to be a copy of a written submission and award was not competent and admissible evidence, and should have been excluded for the following reasons: 1. The absence of the original, as best evidence, was not accounted for, and no foundation was laid for the introduction of a copy as.secondary evidence. 2. No proof was made of the execution of the original by the parties (2 Greenl. Ev. §§ 71, 74) ; the signatures of the parties must be proved. The execution was not admitted as not being denied under oath in the answer, for the reason that the instrument of writing was not filed with the petition, nor'alleged therein to be lost or destroyed, with profert of a copy. (E. O. 1855, p. 1240, §§ 59, 60, 61 — p. 1267, § 45.) When alleged to be lost or destroyed, the execution must be proved ; so, when not filed with the petition, the defendant is not charged with the execution of the instrument, within the meaning of § 45, and can have no inspection of it. (McCormick v. Kayser, 13 Mo, 131.) Under the practice of 1845, a declaration on an instrument of writing without .profert, or excuse, was bad on demurrer. 3. It did not appear that the arbitrators had been sworn at all under the submission. (Toler v. Hayden, 18 Mo. 399.) If the arbitrator be not sworn before proceeding to hear evidence, it is a “ misbehavior,” and renders the award invalid. (Erissell v. Eickes, 27 Mo. 557; Combs v. Little, 3 Green. Ch. 310.) Unless arbitrators are sworn, the whole proceedings are void. E. C. 1855, p. 194, § 3, “ before proceeding to hear any testimony, the arbitrators shall be sworn.” All written. submissions are within the statute, whether agreed .to be made a judgment of court or not. (E. C. 1855, p. 194.f Bridgman v. Bridgman, 23 Mo. 272; Bloomer v. Sherm'ání'A Paige, Ch. 575; Cope v. Gilbert, 4 Denio, 347.) Oiup statute is taken from the New York statute, and is nearly identical with it. (2 R. S. N. Y. 441, Albany ed. 1836, p. 446-9; Kyd on Awards, 380, noter.; Williams v. Craig, 1 Dali. 313.) 4. The signing of the award was not attested by a witness. (R. O. 1855, p. 195, § 6; Newman v. LaBeaume, 9 Mo. 29, 34; Bloomer v. Sherman, 5 Pai. Oh. 575.) II. The special defence set up in the answer, and the issue on which the trial was had before the court (no jury being called for), was of matter cognizable in equity, and the case is to be determined according to the principles of equity jurisprudence. Curran v. Sellew, 28 Mo. 322, the mode of trial is to be determined by ascertaining whether, under the old system, the case would be cognizable at law, or in equity. Ellis v. Kreutzinger, 31 Mo. 432, the distinction between law and equity is retained under the code so far as to furnish the rule as to the former. R. C. 1855, p. 1233, § 13 ; Adams’ Eq. [193], 375, where the submission rests on mere agreement, and is not a rule of any court, the jurisdiction is exclusive in equity. Flournoy v. Holcomb, 2 Munf. 34, courts of law and equity have a concurrent jurisdiction to revise awards. 2 G-reenl. Ev. § 78; Watson Arb. 279 [57 Law Lib. 163], “every ground of relief against an award in equity is equally open in a conrt of law,” when the court has taken jurisdiction of the case. R. C. 1855, p. 198, § 23, the statute does not “ impair, diminish, or in any way affect the authority of a court of equity” over awards. Equity jurisdiction not being restricted by the statute, the inquiry here is not limited to statute grounds for vacating an award, (§ 9, p. 195,) as it might be in a case agreed to be made a rule of court, and brought into court for judgment on the award, as a proceeding at law. III. A court of equity will vacate an award,' not ..only for corruption, partiality, or gross misbehavior O'f' the ’arbitrators, but for the suppression or concealment of material facts by a party, or for a mistake of a material fact by th'é arbitrators, which they themselves admit, of a mistake of lawj tin less the questions of law were expressly referred to their decision by the terms of the submission ; and of all these matters extrinsic evidence is admissible. 2 Sto. Eq. §. 1456 ; Sto. Contr. § 985, j.; 2 Com. Dig. 876; Chan. 2 K. 2, 877 ; Adams’ Eq. [192] 875, “if they have acted on a mistake as to a material fact, admitted by themselves to have influenced their judgment”; Kyd on Awards, 354, “ where any circumstance is suppressed by. either of the parties, or concealed, and the arbitrator declares that, had he known that circumstance, he would not have made such an award,” or if it “ might be reasonably supposed that his award would have been different,” 356 ; 358, “ the fact of concealment will be investigated”; 380 a., note®.; Williams v. Craig, 1 Dali. 313; Watson on Arb. 281; Knox v. Simonds, 1 Yes. Jr. 369 -78; Morgan v. Mather, 2 Ves. Jr. 18; Van Courtland v. Underhill, 16 Johns. 405 ; id. 408-9; Shinnie v. Coil, 1 McCord, Ch. 478,485; Bulkley v. Stearns, 2 Day, 552; Kirby, 356, for suppression of a material fact; Galloway v. Hill, 4 Bibb, 475 ; Young v. Walker, 9 Yes. 364.) 1Y. R. O. 1855, p. 1536, § 8, a dedication of streets to public use vests the lee m the county for the use of the public. (City of Hannibal v. Draper, 15 Mo. 634.) The evidence showed that the dedication was made by Wilkinson’s trustees on the 16th April, 1858, and that Nérée Vallé acquired title to certain lots in the addition, on either side of the street, by deed of the 17th April, 1858, and that the Company, not knowing of the dedication, supposed they had to acquire a strip 100 leet wide, as in case of country farming lands. I. The agreement for submission and the award was a good common law submission and award, on which the plaintiff well brought his action at law, without proceeding to enter judgment under the statute. (4 Blackf. 253, 89.) In the latter case it was held, if there was in the submission no provision for entering judgment on the award, then there was 310 remedy to enforce it but an action at law. To the same effect are the rulings in 5 Wend. 519-20 ; 9 J. R. 212 ; 20 Barb. 484. In the same case, it is said when the submission is in writing, with no stipulation for entering judgment on the award, only sections 3, 4, 5, 6 and 7 apply ; that is, that all submissions in writing are either wholly or partially governed by the New York statute of arbitrations. Those which contain a stipulation for entering judgment on the award are governed by all the provisions of the statute. Those submissions in writing which do not contain such a stipulation are governed by sections 3, 4, 5, 6 and 7, but in other respects stand as they would at common law. (1 Abbot’s N. Y. Dig. p. 216, § 162, and references there made,) This submission not containing any stipulation for entering judgment, the special provisions intended for that pui'pose have no application. II. The swearing of the arbitrators was not indispensable. It was not required by the common law (4 Comst. 157), nor was the subscribing witness of more moment. The parties might waive any formalities required by the statute. (10 Johns. 143 ; 2 Hill, 440 ; 1 Denio, 440 ; 1 Hill, 321; 20 Barb. 484; 9 Barb. 246; 1 Barb. 591.) III. The 6th section of our “ Act concerning arbitrators” (R. C. 1855, p. 195) expressly declares that the subscribing witness is required only in case the judgment is to be entered on motion pursuant to said act. IV. The objection that that award was not attested by subscribing a witness was not made prior to the trial below, nor at the trial, and cannot be entertained now. (6 Hill, 303.) V. There was no cause shown for vacating the award, either under the statute, or out of it. There is no allegation of partiality or corruption. It is said Yallé misrepresented his title (29 Mo. 184-8) ; but it is not pretended he did so knowingly (34 Mo. 524), nor can it be shown that his statement was untrue. He did own the whole of the land, and really believed himself entitled to compensation for all of it. (21 Mo. 584; 3 Hill, 567.)