
    Ellison v. Weathers, Appellant.
    
    1. Arbitration. If an award is broader than the submission, and either constitutes one entirety or its several parts are so connected as to he conditional and dependent upon one another, it will be void; but if one part is complete in itself, and is separable from and independent of the rest, and that part is covered by the submission, it will be upheld, while the rest will be rejected; but even the part not within the submission will become binding if accepted by the parties.
    2. -: ratification. No new consideration is necessary to uphold a subsequent ratification of an unauthorized award.
    3. -: witness. An arbitrator is not a competent witness to impeach his own award.
    
      Appeal from Jasper Circuit Court. — Hon. Joseph Cravens, Judge.
    Aeeirmei).
    
      J. Morris Young and Phelps $ Brown for appellant.
    
      
      A. L. Thomas for respondent.
   Ray, J.

This case originated before a justice of the peace in Jasper county, where the plaintiff had judgment, from which the defendant appealed to the circuit court, where plaintiff again had judgment, from which the defendant appealed to this court. The statement filed before the justice was to the effect following:

' “ Plaintiff' states that on the — day of November, 1878, he was the owner of one white heifer, of the value of $25, which defendant wrongfully took from plaintiff and converted to his own use, to the damage of plaintiff in the sum of $40. Plaintiff further says that on the — day of November, 1878, he and defendant, by agreement, selected three arbitrators, (Ruchanan, Potts and Ellis,) to hear and determine said controversy; that they submitted the same to said arbitrators, each party agreeing to abide the decision, and perform whatever should be adjudged asad determined by said arbitrators; that said arbitrators, after hearing the evidence produced by the respective parties, made and published their award, in the presence and hearing of the parties, to the effect following: £ That if the defendant retained the heifer, he should pay the plaintiff the sum of $15 for said heifer, and all the witness fees and. mileage, and pay plaintiff’ for his own fees as a witness/ Plaintiff says that the defendant thereupon agreed to pay plaintiff said' sum of $15, and the further sum of $15 witness fees, there being seven witnesses taken by plaintiff, who traveled seventeen miles to place of trial; and that the defendant refuses to pay the same to plaintiff, although the same is due and unpaid. Thereupon he asks judgment against the defendant for the sum of $80, with interest and costs/’

Neither party requiring a jury, the case was submitted to the court for trial. The record shows that the agreement to arbitrate, the submission to arbitrators, as well as the award of the arbitrators, were altogether oral; that Buchanan, Potts and Ellis were all chosen as the arbitrators ; that the question submitted to them for decision was the “ ownership ” of the heifer; that all three of the arbitrators met to hear, consider and determine the question thus submitted; that the plaintiff and defendant, with their witnesses, appeared before said arbitrators and testified about the matter; that it appeared from said testimony that prior to the date of the arbitration the plaintiff* had been in the possession of said heifer, but that the defendant had driven her off, and at the time of the arbitration had her in his possession in a lot close by where the arbitration was being, held — both parties claiming to be the owner; that, after hearing all the testimony produced by the respective parties, the arbitrators all retired to consider and determine the question, (and also proceeded to said lot to look at the heifer in controversy,) and thereupon made and published their award, in the presence and hearing of the parties, to the effect “that the heifer belonged to the plaintiff';” and further, “ that if the defendant elected to retain the heifer, he was to pay the plaintiff $15, as the value of the heifer, and to further pay all the costs of the arbitration, witness fees, etc.; if the defendant returned the heifer to the plaintiff) then he was to pay half the costs and the plaintiff the other half.”

What followed this announcement of the award, the record shows was differently stated by the parties and witnesses, and in some particulars was the subject of conflicting and contradictory testimony. On some of the points, however, all the witnesses as well as the parties agree. The plaintiff and witness Buchanan both testify that upon the announcement of the award, the defendant said he would retain the heifer, pay the $15, as the value of the heifer, and the costs. The defendant and witness Chase each deny that defendant said any such thing. Other witnesses testify that they did not hear the defendant say he would pay the award. All the witnesses, however, including both plaintiff and defendant, agree in testifying that upon tbe announcement of the award, tbe defendant said (presumably addressing tbe witnesses) “ Boys, what’s your bills or, (as one witness expressed it,) “Boys come up here till I see wbat you are going to charge me.” All tbe witnesses and parties further agree that tbe defendant thereupon also, asked Esq. Ellis wbat bis fees were, and paid him $2, tbe amount of bis charges. Tbe record further shows that tbe defendant retained tbe heifer and made no offer to return her to the plaintiff; that tbe plaintiff was present during all this time, and expressed no dissent and made no objections to wbat tbe defendant said and did; nor did be set up any claim or make any demand for the heifer.

Buchanan testified that be, Potts and Ellis were tbe three arbitrators, who beard and tried tbe case as such; that after bearing tbe testimony, they all adjourned to tbe lot and looked at tbe heifer in controversy; that they all agreed that tbe plaintiff was the owner of tbe heifer; that Ellis then said we should fix tbe value of tbe heifer; I said she was worth $18. Potts thought $13 was enough, when Ellis decided tbe value to be $15. Ellis also said we must settle about tbe costs, which we did. We all then returned to tbe school bouse where tbe arbitration was held, and Ellis announced the award as hereinbefore stated.

Ellis testified that be was present at tbe arbitration, that be acted as umpire only, and not as one of tbe arbitrators ; that be did not understand or consider himself as one of tbe arbitrators, but solely as umpire, and only called on to act in case tbe two arbitrators did not agree ; that he swore the witnesses and tbe two arbitrators, Buchanan and 'Potts, but that be was not sworn; that tbe award wás as stated; that be had nothing to do in making said award, except to decide tbe value of tbe heifer, when tbe two arbitrators differed as to tbe value; that be did not concur in or approve tbe award, but at the request of tbe two arbitrators be announced the award, but made no announcement of bis dissent or objection to tbe same.

Buchanan on being re-called, said he never heard that Ellis did not consider himself as one of the arbitrators. He appeared to be acting as one, and I considered him as one. He never objected to the decision as to who was the owner of tbe beifer.

At tbe close of tbe testimony tbe court gave tbe following instructions for tbe plaintiff, over tbe objections of tbe defendant, who excepted:

1. If tbe court find from tbe evidence tbat tbe plaintiff and defendant authorized Walter Bucbanan, H. O. Potts and S. J. Ellis to settle and determine a certain dispute arising between them in relation to a certain beifer, agreeing to abide and perform whatever should be determined by said Bucbanan, Potts and Ellis, and tbat after bearing the statements and evidence of tbe parties, they decided tbat if tbe defendant retained tbe beifer, be should pay tbe plaintiff $15 and all costs, and tbat afterward defendant elected to retain tbe beifer and agreed to pay said sum and costs, then tbe finding shall be for tbe plaintiff.

2. If tbe court find from tbe evidence tbat tbe plaintiff and defendant submitted a controversy, in regard to a certain beifer, to Walter Bucbanan and H. C. Potts, as arbitrators, and Esquire Ellis, as umpire, to decide if tbe arbitrators could not agree; mutually agreed to abide by and perform srtcb award as tbe arbitrators should make, or such as tbe said Ellis should make if said arbitrators could not agree, and tbat tbe said arbitrators, after bearing tbe evidence, awarded and published tbat if the defendant retained tbe beifer be was to pay plaintiff $15 and all costs incurred before such arbitrators, and if tbe court finds tbat defendant then elected to retain said beifer and pay said costs, and did then pay a part of said costs, then tbe finding should be for tbe plaintiff’.

Tbe court also refused tbe following instructions asked by tbe defendant, to which be excepted:

1. Tbe court sitting as a jury declares the law to be that under the pleadings and evidence in this case, the plaintiff is not entitled to recover.

2. If the court, sitting as a jury, believe from the evidence that the plaintiff and defendant mutually agreed, to and did arbitrate and submit the question, as to whether the plaintiff or defendant was the owner of a certain white heifer, mentioned in plaintiff's statement, to Buchanan, H. C. Potts and Esquire Ellis, a justice of the peace of Cherokee county, Kansas, as arbitrators, and that said arbitrators awarded that plaintiff was the owner of said heifer, and assessed the value of- said heifer at $15, and further awarded that if defendant retained said heifer, he should pay the plaintiff the sum of $15 and all the costs and expenses of said arbitration; or if the plaintiff' retained the heifer, then the plaintiff was to pay one-half the costs and expenses of said arbitration, then the plaintiff cannot recover in this action.

3. That if the arbitrators took into consideration and made an award about matter not involved in the submission to them, then the award is unauthorized and void as to such matter; therefore, if the court, sitting as a jury, believe from the evidence that the said arbitrators awarded and determined, that in the event that defendant retained the heifer in controversy, he should pay the plaintiff the sum of $15, and all the costs and expenses of said arbitration, or if the plaintiff retained the heifer, then the plaintiff' was to pay one-half the costs and expenses of said arbitration, then said award is void, and the court should find for the defendant.

4. If the court find from the evidence that all the arbitrators did not join or concur in the award sued on, the plaintiff" cannot recover in this action.

5. If the court believe from the' evidence that Esquire Ellis did not consider himself as one of the arbitrators, but merely as an umpire, believing and thinking that he had no voice or vote in the matter, as to what award should be made, unless the other arbitrators, Buchanan and Potts, failed to agree, and that said Ellis, acting upon the idea that he sustained no other relation to the arbitration than- that of an umpire, or third person called in to preside over the deliberations and to act only in the event that the other arbitrators failed to agree, and that said Buchanan and Potts did agree upon the award and reported the same to said Ellis, who thereupon announced the award declared upon in this case, thinking that he was announcing the award and determination of the said Buchanan and Potts only, and not joining or concurring, or intending to join or concur in such award, then the finding will be for the defendant.

Whereupon the court found the issues for the plaintiff', and also found that the defendant was indebted to the plaintiff' in the sum of $28.20, and gave judgment accordingly. The usual motions for new trial and in arrest of judgment were made and overruled, to which the defendant’ excepted and brings the case here by appeal.

The only questions before us grow out of the action of the trial court in giving and refusing instructions and in overruling motions for new trial and in arrest. The instructions and the motions raise the same questions, and may, therefore, be considered together. It is contended for defendant that the award in this cause is inadmissible and void: 1st, Because it decides upon more than was submitted, and this action is to enforce the entire award, as made, to-wit; ownership, value of heifer and the costs. 2nd, Because the submission was to three arbitrators, with no provision for a less number to act, while the record shows that the award was made by two only, and that the third did not concur in or approve the same. 3rd, that there was no act of defendant upon the announcement of the award, or subsequent, that estopped him from controverting the validity or force of the award, or that renders him liable to the plaintiff for the amount sued for, or any part thereof. These, we believe, are the principal points relied on by the defendant for a reversal in this cause,

Ill the first place, let ns see to what extent, if at all, these objections are trae, when tested by the facts in this record. Secondly, If true, what force or validity do they possess, or what application do they have to the facts of this case or the cause of action in this record. And lastly, Let us ascertain, if we can, what is the cause of action really sought to be enforced by this suit, and actually passed upon and decided by the court in its finding and judgment herein.

It will be remembered, in the first place, that the arbitration in question is at common law, and not under the statute. In the next place it may be conceded, for such is the law, that if the award is broader than the submission, and constitutes one entirety ; or if the several parts are so connected, as to be conditional and dependent upon one another, then the award is not valid and will not support an action. Morse on Arbitration, 178,181. It is equally true that an award may be valid in part and void or invalid as to the remainder. Morse on Arbitration, 453. If the award consists of several parts, one of which is com-, píete in itself and wholly separable from and independent of the others, and that part is covered by the submission, it is valid and may be sustained while the portions outside the submission will bo rejected. Morse on Arbitration, 453. The award in this record, as appears by inspection, has two parts, the first of which is complete in itself and wholly separable and distinct from the latter. This part also, as shown by the record, was distinctly submitted, and specifically decided by the award, and tested by.the above rule is valid and conclusively binding, whilst' the latter part is confessedly outside the submission, and' as an award (if such' it can be called) of itself, has noiforeeior validity whatever. On its face, however, it does not purport to decide anything, and is in no just sense an award. At-most, it is in the nature of a proposition from the .arbitrators to the plaintiff and defendant, which they werelat perfect liberty to reject or accept. If, however, they see proper ¡to accept it and in fact clo accept it, why are they not bound thereby ? Whether they did accept it or not (being the question at issue) depends upon what they did and said, in reference to the same, and that was a matter in evidence, to be judged of and passed upon by the court that tried the cause. If they did accept the proposition, the legal effect of that acceptance was to pass the title to the heifer from the plaintiff to the defendant, and render the latter liable to the former for the value of the heifer and- the cost of the arbitration as the same had been ascertained by the arbitrators, and that also was a matter of evidence, submitted to and passed upon by the court. If also, as we think the evidence abundantly shows, the defendant thereupon elected to retain the heifer, which he already had, and agreed to pay its value and the cost, as aforesaid, and if the plaintiff consented and acceded to the same, nothing else whatever remained for the plaintiff to do in order to render the contract complete and binding. Benjamin on Sales, §§ 308, 311, 315.

Again, we think the further objection of the defendant that this action was to enforce the entire award as made : ownership, value of the heifer and the cost, manifestly is not well taken. The statement filed before the justice consists of three divisions. The first has reference to the wrongful taking and conversion of the heifer; the second, to the arbitration that followed, and the third to what transpired between plaintiff and defendant in reference thereto, upon the announcement of the award, and, as we have already seen, this last branch of the statement manifestly constitutes the cause of action sought to be enforced by this suit. The alleged conversion was but the inducement to the arbitration that followed, and that, in turn, became the inducement to what transpired between the parties upon the announcement of the award. The award, therefore, it is apparent, is the inducement to and not the subject of the action. The real purpose of the suit, as we have already seen, was to enforce the legal effect of what took place between the parties upon the announcement of the award, and that as we have also seen, amounted, in legal contemplation, to a “ bargain and sale,” by which the ownership of the heifer (conclusively settled by the award, to have been with the plaintiff,) was transferred from plaintiff to defendant, and a corresponding liability imposed on him to pay for it, as ascertained by the award. In addition to this it may be stated, for such is the law, that there is respectable authority for the position, that conceding the latter clause of the award was in its nature really a part thereof, and conceding further, that it possessed no validity for -want of prior authority, if not absolutely void, that defect may be waived by a subsequent ratification. The doctrine on which this position rests, is that arbitrators are but the chosen agents of the parties, and like any other agents, if they exceed their authority, in any particular, to that extent their action is wanting in validity, yet, as in other matters of agency, the defect may be waived, and is cured by subsequent ratification, and that, in such cases, no new consideration is necessary to uphold the ratification. Morse on Arbitration, 106, 170, 171, 174, 175; Ferris v. Thaw, 72 Mo. 446; National Bank v. Gray, 63 Mo. 39; Abbott’s Trial Ev., 465, 467; 6 Waiters Actions and Defences, 537; Bullitt v. Musgrave, 3 Gill (Md.) 32; Hamlin v. Duke, 28 Mo. 166; Squires v. Anderson, 54 Mo. 193.

As to the further point, that the award in question was made by one only of the arbitrators, and that the third did not concur in or, approve the same, the record fails to sustain the objection. Both plaintiff and defendant agree that all three were chosen as arbitrators; that they all met as such, and after hearing the testimony retired for consultation and determination, and upon their return, announced their award. In this the parties are supported by .all the other witnesses, including one of the arbitrators, except the witness Ellis, who testified that he was one of the parties selected, but he understood and considered that he was an umpire only, and not an arbitrator, and that he acted only in that capacity, that he did not approve or concur in the award, but made no announcement of his consent or non-concurrence at or before the making or publishing of the award, and that he made the announcement of said award at the request of the other two. This private understanding of Ellis as to the capacity in which he was acting unannounced, or otherwise made known to his fellows, the parties or the public, at or before the announcement of the award, is not permissible in law, to impeach or invalidate the award; neither was he a competent witness, in a suit upon the award,, thus to nullify his official action as such. Indeed the law is well settled that the dissent of an arbitrator from the award of .his fellows must be expressed at or before the time of publication. If he unites with them in making the award, or is present at the publication and announces the award to be the decision of the arbitrators, he will not be heard afterward to impeach the award by testifying that in fact he did not concur or unite with them in making and publishing the same. Eor such a purpose he is an incompetent witness. Like a juror, he cannot be called to impeach his award, but like him he may be called to sustain it. Morse on Arbitration, 162, 164; Stone v. Atwood, 28 Ill. 30, 42, 43; Abbott’s Trial Ev., 468, 469, 470; Waite’s Actions and Defences, 554; 5 Cow. 383, 384, 387, 388; 4 Cush. 317, 321; 20 Barb. 482; 10 Met. 431, 433. If it were otherwise it would be in the power of any one of the arbitrators, in any award, by testifying as Ellis did in this case, to overthrow the same. Such, manifestly, is not the law. Public policy forbids it.

The only remaining objection of the defendant, that there was no act of his, upon the announcement of the award, or subsequently, by which he was estopped from denying its validity or asserting his right, is not sustained by the record, and has already been considered and disposed of adversely to his claim.

As to the instructions, it may be sufficient to say: 1st, That -while the phraseology of the plaintiff’s instructions may be subject to verbal criticism, yet they submitted fairly the whole question arising on all the evidence before the court. There was, therefore, no error in this particular.

Instructions numbered two and three for defendant, are objectionable in that they ignore altogether all that part of the testimony tending to show that the defendant, after the award was made and announced, elected to retain the heifer and pay value and the cost of arbitration, as ascertained and proposed by the arbitrators. The court may have believed all that these instructions assumed, and yet under all the facts in evidence, the plaintiff might still be entitled to recover. Porter v. Harrison, 52 Mo. 521; Roysden v. Trumbo, 52 Mo. 35; Ellis v. McPike, 50 Mo. 574; 50 Mo. 516; 56 Mo. 289; 56 Mo. 296.

As to the fourth and fifth instructions of defendant, it may be sufficient to say, as we have already seen, that there was no competent evidence before the court on which to base them, and in that view it was not error to refuse them.

As no error appears in the record materially affecting the defendant’s interests to his prejudice, the judgment of the court is affirmed.

All concur, except Henry, J., who dissents.  