
    Koerner v. Leathe, Appellant.
    Division Two,
    May 9, 1899.
    1. Arbitration: motion to vacate award: submission to jury. Where parties have, under a statute, submitted their differences to arbitrators, neither is entitled to have submitted to a jury the issues raised by a motion to set aside the award, if those issues are fraud or partiality on the part of the arbitrators or statutory grounds. And this ruling does not violate the constitutional guaranty of the right to trial by jury.
    
      2. -: -: practice. Proofs to sustain, motions to vacate the award of arbitrators should be taken by affidavits, and the appellate courts should hear and review the judgment as in equity eases.
    3. -: what it IS. The statutory method of arbitration maybe designated as “a quick bill in equity.”
    4. -: lumping award. And where defendant has agreed to be responsible to plaintiff both for his own debt and that of other parties named, and no stipulation is made for separate awards, the arbitrators may determine on one lumping sum as the amount due.
    
      Appeal from St. Louis Oity Circuit Court. — Hon. Jacob Klein, Judge.
    Aeeibmed.
    R. M. Nichols for appellant.
    (1) The court erred in refusing a jury. R. S. 1889, sec. 405; Earl v. Hurt, 89 Mo. 263; Benoist v. Thomas, 121 Mo. 664; Gunn v. Thurston, 130 Mo. 339; Rand & McNally v. Wickham, 60 Mo. App. 44; Durene v. Gitchel, 55 Me. 241; Goodwin v. Miller, 32 Ind. 419. This is an action “for the recovery of money,” and no less such because the verdict has been given. Experience has shown that this award or “verdict” might be tainted by either of the imperfections enumerated in the statute and for that reason a petition charging any of these grounds may be engrafted upon this award or verdict which of necessity must always raise an issue of fact. (2) The contract of submission in the case at bar is general in its terms, and extraneous evidence is admissible to show what was intended to be passed upon by the arbitrators. Squires v. Anderson, 54 Mo. 193; Hinkle v. Harris, 34 Mo. App. 232; Lorey v. Lorey, 60 Mo. App. 417. (3) Nothing is included in the tsubmission but the subject-matter involved in it. And if an arbitrator embraces in his award, matters not submitted, and includes the result in a single conclusion, so as to render it impossible to separate the matters referred from those which have not been, the awTard is void. Railroad v. Meyers, 59 U. S. 252; Squires v. Anderson, 54 Mo. 193; Ellison v. Weathers, 78 Mo. 115; Rrost v. Smith, 30 Ky. 124; Thrasher v. Haynes, 2 N. H. 429. (4) It is a valid objection to an award, that it does not precisely distinguish between the moneys which were to be paid by* him in his representative character and those for which he is personally bound. Lyle v. Rodgers, 5 Wheat. 394; Hoffman v. Hoffman, 26 N. J. L. 176; Crawford v. Berry, 11 Grill & J. 310; Dorsey v. Dorsey, 11 Gill & J. 299; Davis v. Dyer, 54 N. H. 146.
    Kehe & Tittmann for respondent.
    (1) The court did not err in refusing appellant a right of trial by jury on his motion to vacate the award of the arbitrators. R. S. 1889, secs. 415, 417, 2131 and 2132; Con-ran v. Sellew, 28 Mo. 320; Wendover v. Baker, 121 Mo. 273; Gunn v. Thruston, 130 Mo. 339; Beattie v. David, 40 N. J. L. 102; Milner v. Noel, 43 Ind. 324; Spencer v. Curtis, 57 Ind. 221; Boyden v. Lamb, 152 Mass. 416. (2) In .order to make an objection to an arbitrator effective, it must be made as soon as the fact of his incompetency becomes known to the party objecting. Ledlie v. Gamble, 35 Mo. App. 355; Leitch v. Miller, 40 Mo. App. 180; Indiana Ins. Co. v. Brehm, 88 Ind. 518; Seaton v. Kendall, 61 111. App. 289; Húbbard v. Hubbard, 61 111. 328; Anderson v. Burchett, 43 Kan. 153; Pearson v. Barringer, 109 N. C. 398; Morse on Arbitration, p. 105; Pox v. Hazleton, 10 Pick 275; Noyes v. Gould, 57 N. H. 20; Robb v. Brachmann, 38 Ohio St. 423; Brown v. Leavitt, 26 Me. 251; Dougherty v. McWhorten, 7 Yerger 239. (3) Objections to an award must be apparent on its face. An award will not be set aside upon motion or vacated for any mistake of law or fact, nor because of the reception of illegal evidence that does not appear on the face of the award and no extrinsic facts will be received in evidence to impeach it. Yalle v. Railroad, 37 Mo. 445; Taylor v. Scott, 26 Mo. App. 251; Todd v. Barlow, 2 Johns. Ch. 551; Ebert v. Ebert, 5 Md. 353; Dorsey v. Je off rey, 3 Har. & M. 121; Lewis v. Wildman, 1 Day 153; Brown v. Green, 7 Conn. 536;:,Wheatly v. Martin, 6 Leigh 62; Head v. Muir, 3 Rand. 122; Bumpbars v. Webb, 4 Port. (Ala.) 65; State v. Merchants’ Exchange, 2 Mo. App. 101. (4) The agreement for submission between the arbitrators recognizes a primary liability on the part of appellant' to the respondent with respect to all matters included in the agreement. The submission did not require a separate award for each matter or of one or more of them. Therefore, an award of a gross sum is a mutual, final and definite award of the subject-matter between the parties and is good. McClure v. Shroyer, 13 Mo. 104; Stearns v. Cope, 109 111. 340; Yannah v. Carney, 69 Me. 221; Karthaus v. Ferrer, 1 Pet. 228; Heckers v. Fowler, 2 Wall. 123; Emery v. Hitchcock, 12 Wend. 156; Wood v. Railroad, 8 N: Y. 160; Gill v. Bickel, 30 S. W. 919; Call v. Ballard, 65 Wis. 187; Strong v. Beroujon, 18 Ala. 168. (5) Moreover, it would have been useless to make separate findings in the award, because they could, under no circumstances, be binding on either the Crown Coal & Tow Company, or, the St. Louis, Belleville & Southern Railway Company, because neither of them was party to the arbitration. Separate findings as to the amounts due by the appellant to respondent on account of these respective companies, could not form the basis of an action by appellant against them, and would not be res adjudicaba as against them. The rights of appellant against these companies was not the subject of inquiry. Karthaus v. Ferrer, 1 Pet. 228; Gill v. Bickel, 30 S. W. 919; Goetchins v. Hodges, 50 Ga. 603; Bassett v. Bassett, 10 N. H. 64.
   GANTT, P. J.

The parties to this action entered into an agreement of arbitration in accordance with the statutes of this State providing that the award should be made a rule of court.

The controversy arose over the claim of the plaintiff against defendant for compensation for legal services rendered by plaintiff to defendant and certain corporations largely owned and managed by defendant.

The arbitrators selected were Messrs. Given Campbell, Samuel N. Holliday and John J. O’Brien. They were first duly qualified, and upon due notice held their sessions, heard the evidence and rendered their award for plaintiff. All the statutory steps were taken, to have the award confirmed by the judgment of the court.

Hpon receiving notice the defendant appeared and moved the court to vacate the award, on four several grounds: Eirst, the partiality of Mr. O’Brien, one of the arbitrators, for John M. Holmes, who was alleged to have an interest in the award»to Koerner; second, because of the failure of the arbitrators to designate the amount due from defendant to plaintiff for each of the said corporations, the Belleville, St. Louis & Southern Railroad Company, and the Crown Goal & Tow Company, but instead found a Jumping sum total for all of said services; third, in not allowing defendant a credit for cash paid; fourth, in exceeding their powers in acting on matters not submitted to them or contemplated by the agreement of submission to arbitration.

That motion was overruled and defendant appeals. The alleged errors will be examined in the order of their assignment.

I. When the motion to vacate for the causes already noted, was filed, defendant demanded that the issues thereby raised should be submitted to a jury. _ The court refused this request and defendant excepted and now urges this as a ground for reversal.

When a suitor demands a course of procedure on the ground that it is secured to him by the Constitution, it behooves the court to give the claim a careful consideration, however unfounded it may appear at first blush. Such is the claim of defendant in this case.

That an action at law might be maintained on a common law award or a refusal to abide by such an award will not be questioned. And in such cases the questions .of fact were and are triable by a jury. So it was held in Duren v. Getchell, 55 Me. 241, and Goodwine v. Miller, 32 Ind. 419, cited by defendant.

But when as in the case at har the submission is under a statute which authorizes parties to submit their differences to arbitrators and they agree that in accordance with the statute the award may be made a rule of the circuit court, it is obvious the parties have waived their common law right to a jury trial and have selected another and different tribunal. ,

This court, as early as Vaughn v. Graham, 11 Mo. 575 (1818), held in an opinion by Judge Scott that by the common law “an award could not be set aside for any cause in a court of law;” that the relief was in equity prior to the enactments of the statutes governing awards. It is quite generally held that the statutory provisions are not exclusive but that the aggrieved party may still resort to equity. [Hyeronimus v. Allison, 52 Mo. 102.] But wherever the point now raised has been adjudicated, the ruling has been that on the issue of vacating or setting aside the award for fraud or partiality or on the statutory grounds resort must be had to the court, and on the issue thus raised the parties are not entitled to demand a jury. Thus in Beattie v. David, 40 N. J. L. 102, the Supreme Court of New Jersey said: “Where, however, as in this case, the parties, by agreement, consent that the cause be- referred to a referee chosen by themselves, and make that consent a rule of court, they can not enter a dissent to the report and demand a trial by jury. They have chosen their own tribunal and must abide by the decision. The court will, however, control the report as the verdict of a jury would be.”

In Goodwine v. Miller, 32 Ind. 419, the Suprem'e Court of Indiana, while holding that an action at law might be maintained on a common law award and was triable by a jury, was careful to sáy “this was an action on a common law award and not a rule of court to show cause why judgment-should not be rendered thereon.” Subsequently, in Milner v. Noel, 43 Ind. loc. cit. 327, upon a rule to enforce the award, the appellant demanded a jury which was denied. The court says: “We are not aware of any rule of. law by which the party excepting to an award in cases like this can have a trial by jury. In Goodwine v. Miller, 32 Ind. 419, vdiich was an action on a common, law award, this court held that a trial by jury might be had. But the court was careful to distinguish that kind of case from such as this. The court said: ‘This was an action on a common law award, and not a rule of court to show cause why judgment should not be rendered thereon.’ The statute provides that ‘the court shall hear the proofs and allegations of the parties, to invalidate and sustain such award or umpirage, and shall decide thereon, either confirming such award or umpirage, or may modify and correct the same in the cases prescribed in the last preceding section so as to effect the intent thereof, and to promote justice between the parties, and shall render judgment on such original or corrected award or umpirage; or the court may vacate such award or umpirage for any of the causes hereinbefore specified.’ ... It seems quite clear to us that in refusing a jury trial the- court committed no error.” The same result was reached and adhered to in Spencer v. Curtis, 57 Ind. 221. [Boyden v. Lamb, 152 Mass. 416; Leonard v. Wading River Res. Co., 113 Mass. 235.]

When we consider also -the language of sections 415 and 417, Eevised Statutes 1889, -providing that when any writ of error or appeal from a judgment on an award shall be taken, copies of the original affidavits upon which any application in relation to such award was founded, and of all other affidavits andpapersrelatingtosuch application shall be annexed to and form a part of the record in the appellate court and such court may reverse, modify, amend or affirm in whole -or in part, it seems clear that the legislature intended -the proofs on motions of this character should be taken by affidavits and that the appellate courts should hear and review the judgment as in equity cases.

This court in Tucker v. Allen, 47 Mo. loc. cit. 490, held that the design of our statute was to encourage the adjustment of differences in a summary mode. While expressly preserving the right to resort to the courts of equity, the statutory method is itself what learned counsel aptly designates as “a quick bill in equity.”

Our conclusion is that the circuit court rightly held that defendant was not entitled to a jury to determine his motion to vacate and set aside the award.

II. The charge that John J. O’Brien, one of the arbitrators, was guilty of improper conduct in receiving entertainment from John M. Holmes, Esq., was obviously not sustained. In view of the long acquaintance existing between defendant and Mr. O’Brien, the responsible official position held by Mr. O’Brien for eight years, and the fact that neither social nor business relation existed between Mr. O’Brien and Holmes, this imputation is reckless.

Equally groundless is the charge that Mr. Holmes and plaintiff were to share in the award to plaintiff, that is to say, one-third to Holmes and two-thirds to Koerner.

The remaining assignment of error is the failure of the arbitrators to separate and distinguish the amount due from defendant to Koerher individually and the respective sums owingbyhiminhisrepresentativecharacter fortheOrown Coal and Tow Company, and the St. Louis, Belleville and Southern Railway Company. The agreement disposes of tin's claim. In the submission Leatbe agrees that be is not only liable for tbe services rendered to bim personally, but that “said Leatbe is responsible to said Koerner for tbe amount wbicb may be due bim from said companies for services.”

It thus appears that as between Koemer and Leatbe tbe latter’s liability was primary. He did not stipulate for separate awards. His relation to tbe two companies was not a matter for adjustment by tbe arbitrators. Tbe companies were not parties to tbe award and bad tbe findings been separate they would not have bound tbe companies in any separate settlements between them and Leatbe, not even evidence of their Lability to bim. Tbe sole inquiry was Leatbe’s liability to Koemer. This obligation being original and personal tbe arbitrators rightly determined in one award tbe amount due to Koemer on account of all tbe services rendered.

Tbe objections to tbe award were properly overruled by tbe circuit court. Tbe judgment was for tbe right party and is affirmed.

Sherwood and Burgess, JJ., concur.  