
    Dormoy v. Knower.
    1. Arbitration: notice essential. An arbitration, though in accordance with the provisions of a written instrument, if' had without notice to one of the parties, and in his absence, is ex parte and not binding.
    2. Practice in the Supreme Court: questions considered on, appeal. The Supreme Court, on appeal, will consider a case only upon the issues on which it was tried in the court below. •
    
      Appeal from Kossuth Circuit Court.
    
    Thursday, April 21.
    Action of replevin for certain cows and other cattle. The cause was submitted to the court without a jury and judgment rendered for defendant. Plaintiff appeals.
    
      George E. Clarke and K. L. Hudson, for appellant.
    
      H. 8. Yaughn, for appellee.
   Reoic, J.

— I. The petition alleges that plaintiff is the absolute owner of the cattle, and that defendant holds the possession thereof under a certain lease or written contract executed by the parties. The instrument stipulates that defendant shall “ take the very best care ” of the cattle, prescribes the manner of their treatment and management, and the division of their increase and profits between the parties. At the end of two years the cattle are to be returned to plaintiff. It also provides that, if defendant fails to perform the terms of the contract, it shall become null and void. It contains the following condition: “At any time if any question is raised, as to non-fulfillment of any of the above mentioned items of this contract, it shall be left with Mr. Des Larzes, of Portland township, for decision.”

The petition alleges that the condition of the lease being violated the instrument became null and void, and was terminated by arbitration; that plaintiff applied to Des Larzes, named in the contract, to determine the question whether the contract was forfeited by tbe violation of its terms by defendant, who after hearing tbe parties decided that defendant bad violated tbe contract, and that it bad thereby become void, and that defendant should deliver tbe cattle to plaintiff at once. Tbe petition alleges that defendant refuses to abide by tbe award and deliver tbe cattle pursuant thereto, and that 'said arbitration and award has not been set aside, overruled or in any way invalidated, but still subsists as a binding and final determination of tbe merits of said controversy.”

Tbe answer admits plaintiff’s ownership of tbexcattle, and that defendant bolds possession under a lease as set up in the answer, and alleges that tbe arbitration was bad without defendant’s knowledge or consent and in fraud of bis rights; that tbe findings of tbe arbitrator are erroneous and untrue, and that defendant has performed tbe conditions of tbe lease.-

At tbe trial tbe plaintiff introduced tbe lease in evidence, and gave testimony in bis own behalf to tbe effect that tbe cattle were not taken care of by defendant as required by tbe lease; that he so informed defendant, and made propositions in regard to tbe care of tbe cattle, which were not accepted by defendant, and thereupon informed defendant that be “ was going to raise the question of tbe condition of the cattle under tbe contract.” Thereupon be applied to Des Larzes, who found and decided that tbe conditions of tbe contract were not complied with- by defendant, and tbe lease was, therefore, void, and defendant should deliver tbe cattle to plaintiff. There was no evidence tending to prove that defendant was present when the matter was investigated by Des Larzes, and that be assented to tbe arbitration or participated therein, or was notified therof by plaintiff or Des Larzes.

II. Tbe Circuit Court held that, as defendant was not a party to tbe arbitration, it would not bind him, and tbe evideuce offered to establish is was immaterial, and, therefore, inadmissible. For tbe reason that defendant was not a party to the arbitration, tbe decision of tbe arbitrator was not admitted in evidence.

We think the ruling of the Circuit Court upon this point is correct. Defendant ought to have been heard by the arbitrator, and should have had notice of the investigation and hearing of the matter in dispute. This position is based upon the plainest principles of law and justice. No man should be bound by a decision who has not had an opportunity to establish his rights involved therein. It is true that the lease makes no provision for notice* of the arbitration, nor does it in express words provide that the parties may be heard. But the law will not so interpret the contract as to Cut off these rights. The contract cannot be interpreted to authorize the plaintiff to institute an ex parte hearing before the arbitrator. It contemplates that both parties shall be heard. It was, therefore, plaintiff’s duty to notify* defendant so that ho could have participated in the arbitration.

III. Plaintiff insists that the Circuit Court should have found for plaintiff, as the evidence shows that defendant had violated the contract, which, by its terms, had become null and void.

It clearly apjrears that plaintiff bases his right to recover in the petition upon the decision of the arbitrator. Whatever averments are found in the petition as to the breach of the contract are simply pleaded as inducements to the decision of the arbitrator. The issue presented in the pleadings involves alone the arbitration and its sufficiency to authorize plaintiff to recover.

It is very plain the parties understood that this issue alone was presented to the Cii*cuit Court. The defendant introduced no evidence at the trial, and all the evidence on the part of plaintiff as to defendant’s breach of the contract evidently was introduced as an inducement to the-arbitration. There can be no doubt that the cause . was not tried in the court below upon an issue involving the breach of the lease by defendant. We must regard the issues upon which the case was tried in the Circuit Court, and can decide it upon no other.

IV. Counsel discuss the question whether an action at law may be maintained in this case, the parties having provided for the settlement of their differences by arbitration. The view just expressed, .namely: that the plaintiff bases his right to recover alone upon the decision of the arbitrator, eliminates this question from the case.

In our opinion the judgment of the Circuit Court ought to be

Aeeirhed.  