Leitch v. Miller

GtILL, J. In February, 1888, plaintiffs occupied a farm of two hundred acres as lessees of Mrs. Miller, the defendant, the lease expiring by its terms March 1, 1889, and at a rental of five -hundred and fifty dollars per annum. About this time Mrs. Miller sold the farm, and agreed with the purchaser to give possession on March 1, 1888. With the view of complying with this undertaking defendant sought to arrange with the lessees, Leitch Bros., for a surrender of their unexpired term. The defendant’s son, Dr. Miller, represented her in the entire transaction; and after some negotiations agreed upon terms with Leitch Bros, to the effect, in substance, that said plaintiffs would surrender possession of the farm on March 1, 1888, in consideration of which defendant would pay plaintiffs such a sum as should be fixed by Aaron Elliott, W. H. Roush and James Roberts. This agreement for appraisement was evidenced by a writing, signed by the parties, and in form as if an arbitration under the statute. On February 18, 1888, these appraisers met at Liberty, and, after consultation, submitted their decision, by which defendant, in addition to some attorneys’ fees, was to pay plaintiffs for their unexpired leasehold of one year the sum of eighteen hundred and fifty dollars; nine hundred and twenty-five dollars to be paid March 1, and the remaining nine hundred and twenty-five dollars, on June 1, 1888. Defendant paid the amount due March 1, as provided for; but, on maturity of the last installment of nine hundred and twenty-five dollars, she refused further payment. Whereupon plaintiffs instituted this suit for the recovery of this said last installment, basing their action-, upon the terms of the contract above mentioned. The cause was tried in the Clay circuit court before a jury, a verdict and judgment had for the defendant, and plaintiffs prosecute this appeal. [186] At the trial the defense relied on was that one of the appraisers, Elliott, was partial to the plaintiffs, and-had prejudged the matter he was expected to hear and decide impartially; and that, therefore, the award so made was void. I. This prejudice and bias of Elliott was fully set out in the answer, to which plaintiffs interposed a demurrer, on the grounds that said answer contained no defense, etc. The point, seemingly relied upon for this objection to the answer, is that it is not alleged therein that defendant had restored plaintiffs to the possession of said leasehold; that in order to rescind the contract entered into between the Leitches and Mrs. Miller, she must first surrender or return to them all she received on that account, to-wit, the possession of said premises. To support this contention the learned counsel for plaintiffs rely upon the line of decisions of which Cahn v. Reid et al. (18 Mo. App. 115) is a sample, wherein it is held that where one seeks to •rescind a contract for the sale of property and to recover the same, ,by reason of fraud and deceit, practiced on the vendor, it is incumbent on the complaining party first to make tender of that he has received from such fraudulent vendee, so as to place such party in statu quo. The principle announced in this line of cases, however, does not sustain the contention here. There is no effort by the defense in this case to annul, or rescind, the contract for the purchase of plaintiffs’ lease. There is no claim of fraud or deceit in procuring the contract of sale of the lease. By consent of both parties to the agreement for sale and transfer of the lease, that has become to the extent .of such transfer an executed contract, and this is an action for the purchase money. Defendant disputes the plaintiffs’ right to recover the nine hundred and twenty-five dollars fixed by the appraisers, because of misconduct by at least one of [187] the number. It was as completely a feature of the submission to these appraisers, that each should carry to the discharge of such duty an unbiased and unprejudiced mind, as if such a clause was written in the body of the instrument. The defense made by the answer is, that the price to be paid was not determined by three impartial minds, as contemplated by the contract, but that appraiser Elliott had before entering on such service prejudged the matter, and entertained a fraudulent design to inflate the amount to be paid by defendant beyond what should in justice be paid. The defense then was rather within than without the spirit and intent of the contract; was not a defense by rescission of the contract, but rather for a just enforcement thereof. It is well established, too, that the misconduct of one of these appraisers effectually vacates the entire award, and for one good reason, among others, that it cannot.be determined how far the one may have influenced others. Morse on Arbitration and Award, p. 537. II. It seems that in the selection of these appraisers, Hr. Miller, defendant’s agent, at first objected to Elliott, expressing at the time some doubt as to his (Elliott’s) honesty. There was, too, evidence at the trial tending to show that, previous to the hearing had by the appraisers, Elliott was interviewed by one of the plaintiffs, and Elliott was then assured that “if he would stand by the plaintiffs they would stand by him, and would' make him a nice present,” etc. It seems, too, that Elliott went to Hr. Miller and related this circumstance, telling Miller that if selected he meant to do just what was “ square and right,” and encouraged Miller to believe that he, Elliott, would not be influenced to do wrong, etc. Thereupon, Miller, trusting that his mother would be fairly treated, permitted the hearing and appraisement to proceed, without objection. Upon this state of facts plaintiffs at the trial asked the court to give an instruction to the jury to the effect [188] that, even, though the said Elliott was biased or had prejudged said cause, yet, if Miller had previous notice of such bias, or had such notice as to put him, while acting as a prudent person, on inquiry, then the jury should find the issues for the plaintiffs. The court refused the instruction as offered and gave in lieu thereof the following: “Even though the jury should find from the evidence that said Aaron Elliott was biased, or had prejudged such cause, yet, if the jury further find from the evidence that defendant, by her agent, E. H. Miller, previously to the hearing of said matter Tcnew of the partiality, bias or prejudgment of said Aaron Elliott, and she suffered the hearing to proceed they will find the issues for the plaintiffs.” Of this action by the court plaintiffs have no cause to complain. The instruction thus given by the court was all, if not more than, was warranted in this case. It may be well doubted if there was evidence sufficient to warrant the instruction as asked, even to admit its correctness.as an abstract proposition of law, since the information received by Miller was calculated to encourage him to trust, rather than suspect, Elliott. However, it is only the knowledge of Elliott’s bias that should have been construed as a waiver. Mere suspicion is not enough. Robb v. Brachman, 38 Ohio St. 425; Noyes v. Gould, 57 N. H. 20; 14 Pick. 236; 2 Met. (Mass.) 558, and 10 Pick. 277. III. The alleged error, that the issues in this cause were, by force of the answer filed, of equitable cognizance and should have been settled by the court as in trial of equity cases, is of no consequence at this stage of the litigation. If the lower court was proceeding improperly plaintiffs should have interposed an objection. But they submitted, without objection, to the manner of trial and it is now too late to complain. Estes v. Fry, 94 Mo. 266. However, plaintiffs’ counsel are clearly wrong in this contention. This is an action on a contract for the [189] recovery of money tlierein stipulated to be paid, — is an action at law, with a defense interposed that the appraisers, therein named to fix the amount to be paid, had not performed their duty as agreed, and had fraudulently inflated the amount of their findings to defendant’s prejudice. It is not an equitable proceeding, but properly an action at law, the answer containing, too, but one count, one defense. The issue charged is partiality, bias and unfairness of one of the appraisers. The issue, thus made was fairly tried and submitted to the decision of a jury upon evidence applicable thereto, and with instructions unobjectionable to either side, and we see no cause to disturb the jury’s finding. The judgment, therefore, of the circuit ' court is affirmed. All concur.