Travelers Insurance v. Pierce Engine Co.

Dodge, T.

There is but one substantially disputed material question on this appeal, and that is whether the agreement was a submission of the question of the amount due, involving law and fact, or a mere submission to the auditor to mathematically compute the amount of the wages shown by tire books to have been paid to the employees upon whose pay roll the contract of insurance required the premium to be based. The agreement may perhaps he ambiguous. The word “audit” is 90mctim.es restricted to a mere mathematical process, hut generally is extended to include the investigation, *107 weighing of evidence, and deciding whether items should or should not he included. People ex rel. Ramsdale v. Orleans Co. 16 Misc. 213 , 38 N. Y. Supp. 890 ; People ex rel. Hamilton v. Jefferson, 35 App. Div. 239 , 54 N. Y. Supp. 782 ; People ex rel. Brown v. Board, 52 N. Y. 224 ; People ex rel. Myers v. Barnes, 114 N. Y. 317 , 20 N. E. 609 , 21 N. E. 739 ; Territory ex rel. Donzelmann v. Grant, 3 Wyo. 241 , 21 Pac. 693 ; In re Clark, 5 Fed. Cas. 853 . Here it is obviously used in a sense to enable the auditor to ascertain the final amount which the defendant owed, which indicates the broader meaning. However, this agreement was made in the light of various surrounding circumstances, such as the suit already commenced, negotiations between the parties wherein the plaintiff’s contention as to the proper construction of the application and policy had been advanced, and many other facts proper to be considered in ascertaining the meaning of the parties. Erom these as well the trial court reached a conclusion in favor of such broader construction. As that conclusion, in some measure at least, depends upon somewhat confused facts and upon the inferences of intention to be drawn therefrom, it is entitled to the weight of the ordinary finding of fact. Vilas v. Bundy, 106 Wis. 168 , 81 N. W. 812 ; Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161, 170 , 87 N. W. 1085 , 89 N. W. 180 . We do not think that conclusion is antagonized by any necessary construction of the-words of the agreement, and we do not find any such clear preponderance of evidence as would justify us in disturbing a finding of fact. It must therefore stand as the basis upon which the rights of the parties must he determined.

The scope of the submission to arbitration being as we have stated, the province and jurisdiction of the arbitrator was as broad as that of a. court and his conclusion within that jurisdiction as final upon the parties. His duty was, as counsel for defendant contends, to malee a proper audit; but such proper audit was merely to ascertain the facts and decide on *108 the rights of the parties honestly and by application of his best judgment. It was not necessarily to make a correct audit or to decide unerringly, according to the view of. the court in which his determination is sought to he enforced. Chandos v. Am. F. Ins. Co. 84 Wis. 184 , 54 N. W. 390 ; McAlpine v. Trustees, 101 Wis. 468 , 78 N. W. 173 ; John Pritzlaff H. Co. v. Berghoefer, 103 Wis. 359, 364 , 79 N. W. 564 ; Coorsen v. Ziehl, 103 Wis. 381, 384 , 79 N. W. 562 ; Consolidated W. P. Co. v. Nash, 109 Wis. 490 , 85 N. W. 485 ; Eau Claire v. Eau Claire W. Co. 137 Wis. 517 , 119 N. W. 555 . There is no allegation in the answer and no proof offered that the arbitrator was guilty of any fraudulent or arbitrary action or fell into mistake in any other sense than that it is claimed he decided erroneously as to certain contentions urged by defendant. But such a submission to arbitration as we have determined this to be confers just that jurisdiction to decide erroneously, if honestly, and to bind the parties to such determination by force of their agreement to be so bound. There is therefore nothing shown to warrant excusing defendant from performing its plain agreement to pay the amount found due by the auditor.

Various somewhat technical contentions are presented by the appellant, most of which disappear in the light of our conclusion as to the scope of the submission. Some of them are perhaps independent of it. One of these is that the dismissal -of the first action was a condition precedent to the efficacy of the arbitration agreement, and that no proof of such dismissal has been offered. This contention is somewhat inconsistent with what is said elsewhere in appellant’s brief, to the effect that an agreement to submit to arbitration the matters involved in a pending action ipso facto■ dismisses that action. This rule seems to be well' established and of itself defeats the -contention. Muckey v. Pierce, 3 Wis. 307 ; Jones v. Thomas, 120 Wis. 274, 278 , 97 N. W. 950 . But it must also be noted that the contract itself, on its face at least, amounts to an ad *109 mission of the dismissal of the action. It recites that the agreement is made in consideration of such dismissal, not of an agreement to dismiss.

Eurther it is argued that the arbitration agreement is unilateral and without consideration. Apart from the executed consideration of the dismissal of the pending suit, we have no douht that the plaintiff, after having availed itself of the agreement by sending its auditor to examine defendant’s-books, had accepted the same and became bound to such acts on its part as would give it full effect, and that if the auditor’s-report had been a less sum, or even no sum at all, it would have been final upon the plaintiff. Excelsior W. Co. v. Messinger, 116 Wis. 549 , 93 N. W. 459 ; W. G. Taylor Co. v. Bannerman, 120 Wis. 189, 192 , 97 N. W. 918 .

A complaint that no notice was required by the agreement or was in fact given of any hearing by the arbitrator is met' by the fact that -the defendant was given full opportunity to-be present at all material times and availed itself of such opportunity. It cannot complain that the other party failed of notice.

The fact that the arbitrator was an employee of plaintiff, is not a legitimate objection, since both parties knew the fact and had a right to waive objection thereto and accept such-person as arbitrator. Fox v. Hazelton, 10 Pick. 275 ; Strong v. Strong, 9 Cush. 560 , 573.

We find no other error assigned which seems worthy of mention or discussion, or which would justify reversal.

By the Court. — Judgment affirmed.