Cox v. Fay

The opinion of the court was delivered by Rowell, J. Defendant’s first request was not based on the evidence, and for that reason might properly have been disregarded. It does not appear that George W. Cox had ever agreed generally with defendant to settle by arbitration the ownership of the steer, nor, if he had so agreed, that such agreement ever came to the knowledge of the piaintiff. It only appears that the plaintiff was informed of his father’s agreement to submit to Hatch and Richmond, to which plaintiff consented, provided he could be present with his witnesses. This is all the knowledge plaintiff ever had of an agreement to arbitrate, and the testimony [451] on his part tended to show that he gave his father no authority to make any submission other than the one to Hatch and Richmond, and there was no testimony to the contrary. As to defendant’s second request. The fact that plaintiff’s father had the control and management of plaintiff’s cattle, would not authorize him to bind plaintiff by an agreement to arbitrate. Nor would the fact that he acted as plaintiff’s agent in making such an agreement, bind plaintiff. The question would still remain, Was he in fact plaintiff’s agent? But the court complied with these' requests as far as defendant was entitled to have them complied with, and the charge in this behalf was quite as favorable to the defendant as the case would warrant. Smith’s award would not bind the plaintiff unless he assented to the submission. And if he did assent, the award was vitiated by the fact that the wrong steer was present at the hearing — a mistake known to the defendant but unknown to plaintiff’s father. It is obvious that this very mistake may have been decisive of the case. It was radical in its nature, and well calculated to deceive and mislead the arbitrator. The acts of plaintiff’s father in submitting to arbitration were not evidence of his authority to submit. Story Agency, s. 136 ; Brigham v. Peters, 1 Gray, 139. If the plaintiff proved that the steer originally belonged to him, it devolved on the defendant to show that he had ceased to be the owner. The fact that Geo. W. Cox obtained a writ of replevin in his own name, was not evidence against the plaintiff. Plaintiff’s letter to his brother directed generally .that replevin should be brought, but not in whose name it should be brought. It was brought in his father’s name without his knowledge or consent, and for that reason he could not be affected thereby. Besides, the suit might well be brought and maintained in his father’s name, on the ground that, as against the defendant, his father had the right of possession, and not at all on the ground that he was the owner. Sprague v. Clark, 41 Vt. 6. Judgment affirmed.