Merchants Bank v. Taylor

By the Court. Benning, J. delivering the opinion. Were the books of the bank admissible as evidence for the bank ? [1.] We think they were; Rawls was a stockholder in the bank. “ The books of public companies, or copies of them, are evidence between those who are interested in them, as against each other, or against the company; as the books of the East India Company, in a cause between the parties having stock there.” 1. Stark Ev. 293. This disposes of the questions involved in the first, second and .third ground of the motion for a new trial. The fourth and fifth grounds of the motion were not insisted on. There is manifestly nothing in the sixth ground of the motion. It was a special part of the terms of the sale of the [342] stock by the administrator, that the sale was not to affect his' rights, or the rights of the bank in this suit. The seventh ground of the motion was not insisted on. As to the eighth ground, we think that the charge referred to in it was erroneous. The reasons for that opinion, will -appear in what will be said on-the 9th, 10th, 12th and 13th ;grounds of the motion, and will be found to be such as grow -out of the submission and the award. The questions involved in those last four grounds are, what matters were referred to the arbitrators, and what matters were decided by the arbitrators ? We think that two questions were referred to and were decided by the arbitrators, viz : 1st. Whether the administrator of Rawls was liable at all on the paper signed by Graves, Tarver, Moore and Rawls. 2d. Whether, if liable at all, he "was liable to the bank ? As to what questions were referred to the arbitrators : The submission opens thus : “ The undersigned,” (the administrator and the President of the bank,) “have referred to the decision of Augustus H. Hansell and Iverson L. Harris, the matter of the controversy growing out of the agreement ■of which the following is a copy,” (the agreement contained in the paper aforesaid, signed by Graves, Tarver, Moore and Rawls.) In the expression, “the matter of the controversy growing-out of the agreement,” is contained an admission, that there was a controversy arising out of that agreement; and a controversy between the administrator and the bank; for the two were the only parties to the submission. The concluding part of the submission shows what that controversy was about. It says that the administrator “ has united in the reference of the question of the obligation of the contract on the said estate he represents, in conjunction with the other party to this instrument, to arbitrament.” Now it is of course to be presumed, that the question about “the obligation of the contract” must have been some [343] question growing out of the “ controversy” between the administrator and the bank, else why should the bank have been a party to the submission ? ■ But what question about the obligation of the contrast could grow out of a controversy between the administrator and the bank, except some question as to whether the administrator was under any liability by the contract to the bank. It is certain that the contract could impose no obligation on the bank, for the bank was not a party to the con-, tract. It is equally certain that the contract might impose obligations on the administrator, for Rawls, the administrator’s intestate, was a party to it. [2.] The question then, “the reference of which” is spoken of in the concluding part of the award, must have been some question as to whether the administrator was under any obligation arising from the contract to the bank. And in that question was involved, of necessity, the question whether the administrator was under any obligation at all, arising from the contract. As to what questions were decided by the arbitrators: The award, it is true, seems to'have been framed without a very clear idea of what the award ought to contain, but still it is such, that taking the whole of it together, we may pretty safely say that it decides that the administrator was liable to the bank. Any doubt about the correctness of this conclusion must be removed by considering that the only practical question submitted to the arbitrators was some question as to whether the administrator was bound to the bank or not, and that as soon as the award was made, the parties treated it as deciding, that the administrator was bound to the bank. As soon as the award was made, the administrator settled with the bank for 147 shares of the stock. Deciding that the administrator was liable to the bank, was also, of necessity, deciding the question whether the administrator was liable at all or not. [344] But the question, what the administrator was to pay to the bank for the stock, was not decided by the award. In reference to that question, we merely say, (what must be obvious,) that, if there was a price for the stock agreed upon by Moore and the bank, and the agreement for the price was one that was fair or the part of both Moore and the bank towards Rawls, and fair on the part of the bank towards Moore, that price' is what the administrator was bound to the bank for; but that if there was no price at all agreed on, or no price fairly, as aforesaid, agreed on, then the market value of the stock at the time when it was bargained for by Moore, was what the administrator was bound to the bank for. These remarks sufficiently dispose of every thing involved in the 9th, 10th, 12th and 13th grounds of the motion. In reference to the 11th ground, we do not feel called upon, considering the turn the case takes, to say more than that the remark of the Court of which that ground complains, was certainly unnecessary and was perhaps improper. And this we repeat, but with more emphasis, of what is complained of in the 14th ground of the motion. A new trial being the necessary result of the disposition that has been made of the grounds already considered, it is unnecessary, and would, therefore, perhaps be improper, to consider the questions, on the sufficiency of the evidence to support the verdict, made in the 15th and 16th grounds. And those questions are the only ones that have not been directly or indirectly considered. Judgment reversed.